Law Commons^™

The Miranda Case Fifty Years Later, Yale Kamisar

Articles

A decade after the Supreme Court decided Miranda v. Arizona, Geoffrey Stone took a close look at the eleven decisions the Court had handed down “concerning the scope and application of Miranda.” As Stone observed, “[i]n ten of these cases, the Court interpreted Miranda so as not to exclude the challenged evidence.” In the eleventh case, the Court excluded the evidence on other grounds. Thus, Stone noted, ten years after the Court decided the case, “the Court ha[d] not held a single item of evidence inadmissible on the authority of Miranda.” Not a single item. To use …

Disentangling Miranda And Massiah: How To Revive The Sixth Amendment Right To Counsel As A Tool For Regulating Confession Law, Eve Brensike Primus

Articles

Fifty years after Miranda v. Arizona, many have lamented the ways in which the Burger, Rehnquist, and Roberts Courts have cut back on Miranda's protections. One underappreciated a spect of Miranda's demise is the way it has affected the development of the pretrial Sixth Amendment right to counsel guaranteed by Massiah v. United States. Much of the case law diluting suspects' Fifth Amendment Miranda rights has bled over into the Sixth Amendment right to counsel cases without consideration of whether the animating purposes of the Massiah pretrial right to counsel would support such an importation. This development is unfortunate …

A Look Back At The "Gatehouses And Mansions" Of American Criminal Procedure, Yale Kamisar

Articles

I am indebted to Professor William Pizzi for remembering—and praising—the “Gatehouses and Mansions” essay I wrote fifty years ago. A great many articles and books have been written about Miranda. So it is nice to be remembered for an article published a year before that famous case was ever decided.

A Rejoinder To Professor Schauer's Commentary, Yale Kamisar

Articles

It is quite a treat to have Professor Frederick Schauer comment on my Miranda article.1 Professor Schauer is a renowned authority on freedom of speech and the author of many thoughtful, probing articles in other areas as well, especially jurisprudence. I am pleased that in large measure, Schauer, too, laments the erosion of Miranda in the last four-and-a-half decades2 and that he, too, was unhappy with the pre-Miranda due process/“totality of circumstances”/“voluntariness” test.3 I also like what Schauer had to say about “prophylactic rules,” a term that has sometimes been used to disparage the Miranda rules.4 As Schauer observes, the …

Proximate Cause In Constitutional Torts: Holding Interrogators Liable For Fifth Amendment Violations At Trial, Joel Flaxman

Michigan Law Review

This Note argues for the approach taken by the Sixth Circuit in McKinley: a proper understanding of the Fifth Amendment requires holding that an officer who coerces a confession that is used at trial to convict a defendant in violation of the right against self-incrimination should face liability for the harm of conviction and imprisonment. Part I examines how the Supreme Court and the circuits have applied the concept of common law proximate causation to constitutional torts and argues that lower courts are wrong to blindly adopt common law rules without reference to the constitutional rights at stake. It …

Dickerson V. United States: The Case That Disappointed Miranda's Critics - And Then Its Supporters, Yale Kamisar

Book Chapters

It is difficult, if not impossible, to discuss Dickerson1 intelligently without discussing Miranda whose constitutional status Dickerson reaffirmed (or, one might say, resuscitated). It is also difficult, if not impossible, to discuss the Dickerson case intelligently without discussing cases the Court has handed down in the five years since Dickerson was decided. The hard truth is that in those five years the reaffirmation of Miranda's constitutional status has become less and less meaningful. In this chapter I focus on the Court's characterization of statements elicited in violation of the Miranda warnings as not actually "coerced" or "compelled" but obtained merely …

Postscript: Another Look At Patane And Seibert, The 2004 Miranda 'Poisoned Fruit' Cases, Yale Kamisar

Articles

Some months after I finished writing an article that, inter alia, discussed the lower court opinions in Patane and Seibert (an article that appears elsewhere in this issue of the Journa),1 the Supreme Court handed down its decisions in those cases.2 In Patane, a 5-4 majority held admissible a Glock pistol located as a result of a failure to comply with Miranda. In Seibert, a 5-4 majority agreed with the state court that a "second confession," one obtained after the police had deliberately used a two-stage interrogation technique designed to undermine the Miranda warnings, was inadmissible. 3 In Patane, Justice …

Separated At Birth But Siblings Nonetheless: Miranda And The Due Process Notice Cases, George C. Thomas Iii

Michigan Law Review

Paraphrasing Justice Holmes, law is less about logic than experience. Courts and scholars have now had thirty-four years of experience with Miranda v. Arizona, including the Court's recent endorsement in Dickerson v. United States last Term. Looking back over this experience, it is plain that the Court has created a Miranda doctrine quite different from what it has said it was creating. I think the analytic structure in Dickerson supports this rethinking of Miranda. To connect the dots, I offer a new explanation for Miranda that permits us to reconcile Dickerson and the rest of the post-Miranda doctrine with the …

Reconceiving The Right To Present Witnesses, Richard A. Nagareda

Michigan Law Review

Modem American law is, in a sense, a system of compartments. For understandable curricular reasons, legal education sharply distinguishes the law of evidence from both constitutional law and criminal procedure. In fact, the lines of demarcation between these three subjects extend well beyond law school to the organization of the leading treatises and case headnotes to which practicing lawyers routinely refer in their trade. Many of the most interesting questions in the law, however, do not rest squarely within a single compartment; instead, they concern the content and legitimacy of the lines of demarcation themselves. This article explores a significant, …

A Tempered "Yes" To The "Exculpatory No", Scott D. Pomfret

Michigan Law Review

What circumstances trigger a person's duty to tell the truth? Immanuel Kant claimed without qualification that all circumstances require truthtelling, even when speaking the truth injures the speaker. John Henry Cardinal Newman made exceptions for lies that achieved some positive end. Hugo Grotius permitted lies to adversaries. The philosophy of twentieth-century common sense largely permits white lies. Perhaps surprisingly, some courts have found that Kant's absolute prohibition of falsehood more accurately characterizes a speaker's duty to tell the truth to the federal government under 18 U.S.C. § 1001 than these other, more relaxed standards. According to this view, the prohibition …

A Peculiar Privilege In Historical Perspective: The Right To Remain Silent, Albert W. Alschuler

Michigan Law Review

Supreme Court decisions have vacillated between two incompatible readings of the Fifth Amendment guarantee that no person "shall be compelled in any criminal case to be a witness against himself." The Court sometimes sees this language as affording defendants and suspects a right to remain silent. This interpretation - a view that countless repetitions of the Miranda warnings have impressed upon the public - asserts that government officials have no legitimate claim to testimonial evidence tending to incriminate the person who possesses it. Although officials need not encourage a suspect to remain silent, they must remain at least neutral toward …

Chopping Miranda Down To Size, Michael Chertoff

Michigan Law Review

A Review of Confessions, Truth, and the Law by Joseph D. Grano

Taking The Fifth: Reconsidering The Origins Of The Constitutional Privilege Against Self-Incrimination, Eben Moglen

Michigan Law Review

The purpose of this essay is to cast doubt on two basic elements of the received historical wisdom concerning the privilege as it applies to British North America and the early United States. First, early American criminal procedure reflected less tenderness toward the silence of the criminal accused than the received wisdom has claimed. The system could more reasonably be said to have depended on self-incrimination than to have eschewed it, and this dependence increased rather than decreased during the provincial period for reasons intimately connected with the economic and social context of the criminal trial in colonial America.

Second, …

Commentary By Co-Defendant's Counsel On Defendant's Refusal To Testify: A Violation Of The Privilege Against Self-Incrimination?, Martin D. Litt

Michigan Law Review

Currently, the circuits are divided on whether comments by co-defendants' counsel on a defendant's silence impair that defendant's fifth amendment rights. Furthermore, among the circuits that regard such commentary as potentially prejudicial, disagreement exists over the proper test for identifying such comments. This Note asserts that the risk of prejudicing a defendant's fifth amendment rights is too great to allow counsel any comment on a defendant's decision to testify or to remain silent.

Part I of this Note examines the historical evolution of the privilege against self-incrimination and the policy goals behind the privilege. The Note argues that prohibiting comments …

Original Intent: "With Friends Like These…", Thomas Gibbs Gee

Michigan Law Review

A Review of Original Intent and the Framer's Constitution by Leonard W. Levy

Duckworth V. Eagan: A Little-Noticed Miranda Case That May Cause Much Mischief, Yale Kamisar

Articles

Professor Yale Kamisar, the country's foremost scholar of Miranda and police interrogation, presents an analysis and critique of the Supreme Court's latest interpretation of Miranda. In Duckworth, a 5-4 Court upheld the "if and when" language systematically used by the Hammond, Indiana, Police Department: "We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court." The real issue was whether the police effectively conveyed the substance of a vital part of Miranda: the right to have a lawyer appointed prior to any questioning. Professor Kamisar …

Fifth Amendment Privilege For Producing Corporate Documents, Nancy J. King

Michigan Law Review

This Note argues that a person should be able to assert her fifth amendment privilege against self-incrimination when her act of producing corporate documents pursuant to a subpoena causes her to make testimonial admissions that are incriminating. Part I briefly examines the two approaches the Supreme Court has used to decide claims of self-incrimination for records production. First, it explains the Court's traditional entity doctrine which, by focusing on the nature of the documents and the capacity in which they are held, has prohibited records producers from invoking the fifth amendment privilege against self-incrimination if the records produced are those …

A Dissent From The Miranda Dissents: Some Comments On The 'New' Fifth Amendment And The Old 'Voluntariness' Test, Yale Kamisar

Book Chapters

If the several conferences and workshops (and many lunch conversations) on police interrogation and confessions in which I have participated this past summer are any indication, Miranda v. Arizona has evoked much anger and spread much sorrow among judges, lawyers and professors. In the months and years ahead, such reaction is likely to be translated into microscopic analyses and relentless, probing criticism of the majority opinion. During this period of agonizing appraisal and reappraisal, I think it important that various assumptions and assertions in the dissenting opinions do not escape attention.

A Peek In Pandora's Box: Folding Carton And The Privilege Against Self-Incrimination In Civil Antitrust Actions, David D. Gregg

University of Michigan Journal of Law Reform

The purpose of this article is to examine the dimensions of an individual's Fifth Amendment privilege in a civil antitrust action where the person has not yet been guaranteed that criminal prosecution is no longer possible. Two issues are apparent: first, under what conditions may a civil antitrust defendant properly invoke the privilege; second, if a civil antitrust plaintiff seeks to discover information privileged under the Fifth Amendment, what is the proper response to the problem? Folding Carton provides an excellent example of the process of antitrust litigation and demonstrates the tensions involved. Using that case as an example, the …

Revocation Of Conditional Liberty For The Commission Of A Crime: Double Jeopardy And Self-Incrimination Limitations, Michigan Law Review

Michigan Law Review

Persons on deferred sentence, probation, or parole who arguably violate the criminal law may face two proceedings: a hearing to revoke their conditional liberty and a criminal trial. The possibility of two proceedings raises at least two major constitutional questions. First, are the defendant's rights under the double jeopardy or due process clauses violated if the state holds two inquiries into the alleged criminal act? Second, is the defendant's privilege against self-incrimination abridged if the revocation hearing is held before the criminal trial?

Self-Incrimination: Privilege, Immunity, And Comment In Bar Disciplinary Proceedings, Michigan Law Review

Michigan Law Review

The questions of the extent of an attorney's right to claim the privilege against self-incrimination during bar disciplinary proceedings and of the consequences of the exercise of the privilege has created a sharp division of opinion. The privilege against self-incrimination necessarily involves a conflict between the public's interest in disclosure and the individual's interest in privacy and nondisclosure. However, the conflict is exacerbated when the individual claiming the privilege is entrusted with important public responsibilities.

Criminal Procedure--Self-Incrimination--Harmless Error--Application Of The Harmless Error Doctrine To Violations Of Miranda: The California Experience, Michigan Law Review

Michigan Law Review

Using decisions of the appellate courts of California that have applied the federal harmless error rule to violations of Miranda v. Arizona and Escobedo v. Illinois, this Note will examine the logic and effects of the California application. However, the California experience can only be understood by first briefly describing the United States Supreme Court's decisions regarding harmless constitutional error and then showing the approaches taken by other states in their application of the harmless error rule to Miranda violations. Not only will this analysis put the California experience in its proper perspective, but it will also show the …

'Custodial Interrogation' Within The Meaning Of Miranda, Yale Kamisar

Book Chapters

The primary conceptual hurdle confronting the Miranda Court was the "legal reasoning" that any and all police interrogation is unaffected by the privilege against self-incrimination because such interrogation does not involve any kind of judicial process for the taking of testimony; inasmuch as police officers have no legal authority to compel statements of any kind, there is no legal obligation, ran the argument, to which a privilege can apply. See, e.g., the discussion and authorities collected in Kamisar, A Dissent from the Miranda Dissents: Some Comments on the "New" Fifth Amendment and the Old "Voluntariness" Test, 65 MICH. L. REv. …

The Citizen On Trial: The New Confession Rules, Yale Kamisar

Articles

Commenting on why it has taken the United States so long to apply "the privilege against self-incrimination and the right to counsel to the proceedings in the stationhouse as well as to those in the courtroom" - as the Supreme Court did in Miranda v. Arizona - this author notes that, "To a large extent this is so because here, as elsewhere, there has been a wide gap between the principles to which we aspire and the practices we actually employ."

Attorneys--Self-Incrimination--The Attorney's Privilege Against Self-Incrimination In A Disbarment Proceeding, Michigan Law Review

Michigan Law Review

A state court has jurisdiction to deal with the alleged misconduct of attorneys practicing before it either explicitly by statute or by ' virtue of its power to control the conduct of its own affairs. Indeed, it can suspend or disbar an attorney who fails to maintain the standard of conduct established for members of the legal profession. One aspect of such a standard is that an attorney is bound not to obstruct the administration of justice, a duty which imposes upon him an affirmative obligation to cooperate with the courts. The question frequently arises whether, in order to satisfy …

Advising A Witness To Exercise His Privilege Against Self-Incrimination When The Adviser's Motive Is To Protect Himself Is An Obstruction Of Justice-Cole V. United States, Michigan Law Review

Michigan Law Review

Defendant, who had perjured himself before a federal grand jury, feared that the testimony of his former employee before the same body would reveal the perjury. Knowing that the employee had previously filed a false affidavit with the McClellan Committee, defendant was able to persuade him to invoke his constitutional privilege against self-incrimination. When the former employee later voluntarily made a full disclosure to government agents, defendant was indicted by a second grand jury and convicted of corruptly endeavoring to obstruct the administration of justice in violation of section 1503 of the Federal Criminal Code. On appeal to the Court …

Commissioner May Examine Taxpayer's Records For Years Barred By Statute Of Limitations Without Proving Reasonable Suspicion Of Fraud--United States V. Powell, Michigan Law Review

Michigan Law Review

The Commissioner of Internal Revenue has power to summon witnesses and to examine records in order to ascertain the correctness of a taxpayer's return. If a summons is not obeyed or if the records sought are not produced, the Commissioner may seek enforcement by applying to the proper federal district court. Although the Commissioner's investigative powers are broad, they are not unlimited. In the absence of fraud, he must act within the confines of a three-year statute of limitations. In addition, the Code makes it abundantly clear that taxpayers may not be subjected to unnecessary examinations or investigations and that …

Kamisar, Inbau & Arnold: Criminal Justice In Our Time, Theodore Souris

Michigan Law Review

A Review of Criminal Justice in Our Time by Yale Kamisar, Fred E. Inbau, and Thurman Arnold

The Role Of A Trial Jury In Determining The Voluntariness Of A Confession, Michigan Law Review

Michigan Law Review

The Supreme Court of the United States has vigorously implemented the principle that criminal prosecution is an investigative, not an inquisitorial, process. Evidence of guilt must be obtained by methods free from physical or psychological coercion. Protections in the Bill of Rights against illegal search and seizure, self-incrimination, and trial without counsel have been extended to the states through the due process clause of the fourteenth amendment. Safeguards against the admissibility of coerced confessions into evidence have also been instituted. Because a confession practically determines the ultimate question of guilt, the critical standards for· admissibility are frequently challenged on appeal. …

Constitutional Law-Search And Seizure-Retrospective Application Of Mapp V. Ohio, Timothy D. Wittlinger

Michigan Law Review

On February 15, 1960, the Louisiana Supreme Court affirmed petitioner's conviction for simple burglary. The conviction was obtained through the use of evidence unlawfully seized from petitioner in violation of the fourth amendment of the United States Constitution. In December 1961 the District Court for the Parish of West Feliciana denied petitioner's writ of habeas corpus filed after the Supreme Court decision of Mapp v. Ohio, which forbade introduction at state trials of evidence seized by state officers in violation of the fourth amendment. The denial of the writ was affirmed by the Louisiana Supreme Court, and certiorari was …