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Custodial Compulsion, Kyron J. Huigens

Articles

In cases that fall under Miranda v Arizona, police interrogators not only give a suspect reasons to confess; they also suggest that the suspect ought to confess. In doing so, interrogators effectively invoke the Wigmorean duty of a citizen to produce any evidence he has in his possession, including his own confession. That is, they invoke the duty against which the Self Incrimination Clause stands, so that the clause is applicable to police interrogations, and is violated where it is not waived. This means that “a Miranda violation” is a violation of the Self Incrimination Clause in the field, just …

Stewart V. State, 133 Nev. Adv. Op. 20 (May 4, 2017), Margarita Elias

Nevada Supreme Court Summaries

Before his interrogation, Tommy Laquade Stewart (“Stewart”) was given LVMPD’s Miranda warning pursuant to Miranda v. Arizona.[1] Stewart then agreed to speak with detectives without an attorney. He was subsequently charged and convicted of kidnapping and robbery. On appeal, Stewart argued that there was insufficient evidence to support the convictions and that the Miranda warning was legally insufficient. The Court disagreed and affirmed the district court’s judgment of conviction.

[1] 384 U.S. 436 (1966).

Manipulation Of Suspects And Unrecorded Questioning, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Fifty years after Miranda, courts still do not have clear guidance on the types oftechniques police may use during interrogation. While first-generation tactics (a.k.a. the third degree) are banned, second-generation tactics such as those found in the famous Reid Manual continue to be used by interrogators. The Supreme Court has sent only vague signals as to which of these second- generation techniques, if any, are impermissible, and has made no mention of newly developed third-generation tactics that are much less reliant on manipulation. This Article divides second-generation techniques into four categories: impersonation, rationalization, fabrication, and negotiation. After concluding, based on …

Still Handcuffing The Cops? A Review Of Fifty Years Of Empirical Evidence Of Miranda's Harmful Effects On Law Enforcement, Paul Cassell, Richard Fowles

Utah Law Faculty Scholarship

The fiftieth anniversary of Miranda v. Arizona offers a chance to assess how the decision has played out in the real world and, in particular, to determine whether it has harmed law enforcement. In this Article, we take advantage of the time since the Miranda decision—now a little more than fifty years—to see whether it has produced the predicted harmful consequences. In particular, we survey the available empirical evidence about Miranda’s effects on law enforcement. We collect confession rate data, both from the time of Miranda and since, to assess whether Miranda caused confession rates to fall. We also review …

Miranda 2.0, Tonja Jacobi

Faculty Articles

Fifty years after Miranda v. Arizona, significant numbers of innocent suspects are falsely confessing to crimes while subject to police custodial interrogation. Critics on the left and right have proposed reforms to Miranda, but few such proposals are appropriately targeted to the problem of false confessions. Using rigorous psychological evidence of the causes of false confessions, this Article analyzes the range of proposals and develops a realistic set of reforms — Miranda 2.0 — which is directed specifically at this foundational challenge to the justice system. Miranda 2.0 is long overdue; it should require: warning suspects how long they …

Miranda'S Truth: The Importance Of Adversarial Testing And Dignity In Confession Law, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

The landmark decision of Miranda v. Arizona focuses on the important values of adversarial testing and human dignity. These values can be found among a constellation of values ordinarily aligned with constitutional criminal procedure cases like Miranda. The constellation also includes values such as truth-finding and equality. With the regularization of DNA analysis and the realization that a large number of innocent people have been convicted, however, there has been a recent fixation on truth-finding. Other values have been overshadowed. The myopic pursuit of truth-finding may be somewhat misguided, as certainty of truth is generally impossible. This is recognized by …

A Comprehensive Analysis Of The History Of Interrogation Law, With Some Shots Directed At Miranda V. Arizona, Tracey Maclin

Faculty Scholarship

Police interrogation is designed to convict suspects under arrest or those suspected of crime. It does not matter that the suspect may not be guilty; interrogation is instigated to obtain an incriminating statement that will help convict the suspect. While many are quick to defend what are considered the “respectable freedoms” embodied in the Constitution — freedom of speech, freedom of the press, and freedom of religion — few champion the Fifth Amendment’s bar against compelled self-incrimination, popularly known as the “right to remain silent,” as a basis for a suspect’s right to resist police questioning. Although it has been …

It's Alive!: How Early Common Law Changes In The Right Against Self-Incrimination Inform The Right's Continuing Relevance, Sheldon Evans

Faculty Publications

The intersection of the Self-Incrimination Clause and Miranda warnings has stemmed disagreement among courts on the scope and application of the right against self-incrimination. To aid in their dilemma, court's often embark on a historical inquiry to give insight into proper interpretations of the Clause. In light of a recent circuit split on one of the Clause's key terms—namely what constitutes a “criminal case”— this Article embarks on a historical inquiry that adds clarity to the topic. By highlighting the several ways the right against self-incrimination changed in its 200 year common law history before the Constitutional Convention, this Article …

The Illusory Eighth Amendment, John F. Stinneford

UF Law Faculty Publications

Although there is no obvious doctrinal connection between the Supreme Court’s Miranda jurisprudence and its Eighth Amendment excessive punishments jurisprudence, the two are deeply connected at the level of methodology. In both areas, the Supreme Court has been criticized for creating “prophylactic” rules that invalidate government actions because they create a mere risk of constitutional violation. In reality, however, both sets of rules deny constitutional protection to a far greater number of individuals with plausible claims of unconstitutional treatment than they protect.

This dysfunctional combination of over- and underprotection arises from the Supreme Court’s use of implementation rules as a …

Strange Bedfellows: How Expanding The Public Safety Exception To Miranda Benefits Counterterrorism Suspects, Geoffrey S. Corn, Chris Jenks

Faculty Journal Articles and Book Chapters

When should a suspected terrorist receive Miranda warnings, and should confessions obtained without obtaining a waiver of the Miranda right to silence and assistance of counsel be admissible at trial? The answer to this question turns on the scope of what is known as the Public Safety Exception (PSE) to the Miranda warning and waiver requirement. Established by the Supreme Court in 1984 in New York v. Quarles, the exception allows the use of confessions obtained from suspects questioned after being placed in custody (the situation that triggers the Miranda warning and waiver requirement) when the questions respond to an …

Miranda’S Hidden Right, Laurent Sacharoff

Sturm College of Law: Faculty Scholarship

When the Court in Miranda v. Arizona applied the Fifth Amendment “right to remain silent” to the stationhouse, it also created an inherent contradiction that has bedeviled Miranda cases since. That is, the Court in Miranda said that a suspect can waive her right to remain silent but also that she must invoke it. Numerous courts have repeated this incantation, including most recently last summer in Berghuis v. Thompkins. But how can both be true about the same right? Either the suspect has the right and can waive it or does not yet enjoy it and must therefore invoke it. …

A Brave New World Of Stop And Frisk, Ronald J. Bacigal

Law Faculty Publications

In this article, the author Ron Bacigal discusses the editorials, The Shame of New York by Bob Herbert and Fighting Crime Where the Criminals Are by Heather MacDonald. These editorials were prompted by the New York City Police Department's release of figures regarding "stop and frisk" incidents within New York City.' MacDonald and Herbert reacted to the same statistical report by putting two very different spins on the raw data. While it's always helpful to compile empirical evidence, Bacigal suggests that we also need to look beyond the mere numbers. If you put aside anecdotal versions of encounters between minorities …

The Supreme Court's Love-Hate Relationship With Miranda, Kit Kinports

Journal Articles

In recent years, the Supreme Court has enjoyed a love-hate relationship with its landmark decision in Miranda v. Arizona. While the Court has not hesitated to narrow Miranda’s reach, it has also been wary of deliberate efforts to circumvent it. This pragmatic approach to Miranda can be doctrinally unsatisfying and even incoherent at times, but it basically maintains the core structure of Miranda as the police have come to know and adapt to it.

Last Term provided the first glimpse of the Roberts Court’s views on Miranda, as the Court considered three Miranda cases: Maryland v. Shatzer …

Developing A State Constitutional Law Strategy In New Mexico Criminal Prosecutions, J. Thomas Sullivan

Faculty Scholarship

This article includes a review of the process by which the New Mexico courts have developed an independent state constitutional jurisprudence reflecting more expansive protections of individual rights than those afforded by the Federal Constitution, as interpreted in the decisions of the United States Supreme Court. It addresses the existing body of state constitutional law and suggests possibilities for further developments, including both the substantive aspects of state constitutional topics and the procedural requirements for asserting state constitutional protections as alternative sources for protection of individual rights. It documents how far New Mexico has come in developing a state constitutional …

Reformulating The Miranda Warnings In Light Of Contemporary Law And Understandings, Mark A. Godsey

Faculty Articles and Other Publications

Since Miranda v. Arizona was decided in 1966, much scholarly attention has been devoted to both the theoretical underpinnings and the real world impact of that decision. Little attention, however, has been paid to the substance or content of the warnings. The Supreme Court has often stated that the Miranda warnings requirement is a prophylactic rule that can change and evolve. However, in spite of 40 years of legal developments and practical experience, the content of these famous four warnings has never been modified or even been subjected to systematic scrutiny.

This Article proposes that the substance of the Miranda …

Rethinking The Involuntary Confession Rule: Toward A Workable Test For Identifying Compelled Self-Incrimination, Mark A. Godsey

Faculty Articles and Other Publications

For more than a century, the Supreme Court has interpreted the Bill of Rights as prohibiting the police from obtaining involuntary confessions from suspects through the use of coercion. If asked whether this involuntary confession rule is an understandable and workable doctrine, however, a noticeable percentage of judges, prosecutors, police officers, criminal defense attorneys and law professors would answer with an unequivocal no.

Basic questions concerning voluntariness and free will - whether it exists, and if so, when it exists, etc. - have puzzled philosophers for centuries and represent one of history's Gordian knots. Not surprisingly, judges have fared no …

The New Frontier Of Constitutional Confession Law - The International Arena: Exploring The Admissibility Of Confessions Taken By U.S. Investigators From Non-Americans Abroad, Mark A. Godsey

Faculty Articles and Other Publications

This Article is part two in an ongoing series. Part I, published at 51 DUKE L. J. 1703 (2002), argued that Miranda warnings should not be strictly required when U.S. agents interrogate non-U.S. citizens abroad. This Article picks up where the first left off, and asks the question: "In the absence of Miranda, do any provisions in the Bill of Rights restrict the ability of U.S. agents to obtain confessions from non-Americans abroad?"

The Article begins by examining the back up or default rules to Miranda in the domestic setting. These rules are the "due process involuntary confession rule," which …

Miranda's Final Frontier - The International Arena: A Critical Analysis Of U.S. V. Bin Laden, And A Proposal For A New Miranda Exception Abroad, Mark A. Godsey

Faculty Articles and Other Publications

In recent years, the FBI and other federal law agencies have greatly expanded their presence abroad, investigating everything from narcotics trade and internet fraud schemes to terrorism. This trend will undoubtedly continue in the aftermath of September 11th. A constitutional question that will be of increasing importance in this context is whether, or to what extent, U.S. law enforcement officials (hereinafter "FBI") must provide Miranda warnings to non-U.S. citizens interrogated abroad who will later be tried in the United States.

The article first addresses whether future modifications to the Miranda doctrine are permissible after Dickerson. The article concludes that despite …

The "Burden" Of Proof In Federal Habeas Litigation, J. Thomas Sullivan

Faculty Scholarship

No abstract provided.

When Terry Met Miranda: Two Constitutional Doctrines Collide, Mark A. Godsey

Faculty Articles and Other Publications

No abstract provided.

The Suspect And Society, Lewis F. Powell Jr.

Powell Speeches

No abstract provided.