Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 20 of 20
Full-Text Articles in Law
The Miranda Case Fifty Years Later, Yale Kamisar
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
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 …
On The Fortieth Anniversary Of The Miranda Case: Why We Needed It, How We Got It--And What Happened To It, Yale Kamisar
On The Fortieth Anniversary Of The Miranda Case: Why We Needed It, How We Got It--And What Happened To It, Yale Kamisar
Articles
Last year (the year I gave the talk on which this article is based) marked the fortieth anniversary of Miranda v. Arizona,' one of the most praised, most maligned-and probably one of the most misunderstood-Supreme Court cases in American history. It is difficult, if not impossible, to evaluate Miranda without looking back at the test for the admissibility of confessions that preceded it.
Miranda's Reprieve: How Rehnquist Spared The Landmark Confession Case, But Weakened Its Impact, Yale Kamisar
Miranda's Reprieve: How Rehnquist Spared The Landmark Confession Case, But Weakened Its Impact, Yale Kamisar
Articles
June marks the 40th anniversary of one of the most praised, most maligned-and probably one of the most misunderstood-U.S. Supreme Court cases in American history, Miranda v. Arizona. The opinion by Chief Justice Earl Warren conditions police questioning of people in custody on the giving of warnings about the right to remain silent, the right to counsel and the waiver of those rights. 384 U.S. 436. This ruling represents a compromise of sorts between the former elusive, ambiguous and subjective voluntariness/totality-of-the-circumstances test and extreme proposals that would have eliminated police interrogation altogether. But William H. Rehnquist didn't see Miranda that …
Dickerson V. United States: The Case That Disappointed Miranda's Critics - And Then Its Supporters, Yale Kamisar
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
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 …
A Look Back On A Half-Century Of Teaching, Writing And Speaking About Criminal Law And Criminal Procedure, Yale Kamisar
A Look Back On A Half-Century Of Teaching, Writing And Speaking About Criminal Law And Criminal Procedure, Yale Kamisar
Articles
When I look back at my academic career, I realize that, as hard as I tried to plan things, various events often overrode my plans.
From Miranda To §3501 To Dickerson To...(Symposium: Miranda After Dickerson: The Future Of Confession Law), Yale Kamisar
From Miranda To §3501 To Dickerson To...(Symposium: Miranda After Dickerson: The Future Of Confession Law), Yale Kamisar
Articles
Once the Court granted [certiorari in Dickerson] court-watchers knew the hour had come. At long last the Court would have to either repudiate Miranda, repudiate the prophylactic-rule cases [the cases viewing Miranda's requirements as not rights protected by the Constitution, but merely "prophylactic rules"] or offer some ingenious reconciliation of the two lines of precedent. The Supreme Court of the United States, however, doesn't "have to" do anything, as the decision in Dickerson once again reminds us.
Lilly V. Virginia Glimmers Of Hope For The Confrontation Clause?, Richard D. Friedman
Lilly V. Virginia Glimmers Of Hope For The Confrontation Clause?, Richard D. Friedman
Articles
In 1662, in The Case of Thomas Tong and Others, which involved charges of treason against several defendants, the judges of the King's Bench conferred on a crucial set of points of procedure. As reported by one of the judges, Sir John Kelyng, the judges agreed unanimously that a pretrial confession made to the authorities was evidence against the Party himself who made the Confession, and indeed, if adequately proved could support a conviction of that party without additional witnesses to the treason itself. But -- again unanimously, and quite definitively -- the judges also agreed that the confession cannot …
Congress' Arrogance, Yale Kamisar
Congress' Arrogance, Yale Kamisar
Articles
Does Dickerson v. U.S., reaffirming Miranda and striking down §3501 (the federal statute purporting to "overrule" Miranda), demonstrate judicial arrogance? Or does the legislative history of §3501 demonstrate the arrogance of Congress? Shortly after Dickerson v. U.S. reaffirmed Miranda and invalidated §3501, a number of Supreme Court watchers criticized the Court for its "judicial arrogance" in peremptorily rejecting Congress' test for the admissibility of confessions. The test, pointed out the critics, had been adopted by extensive hearings and debate about Miranda's adverse impact on law enforcement. The Dickerson Court did not discuss the legislative history of §3501 at all. However, …
Confrontation Confronted, Richard D. Friedman, Margaret A. Berger, Steven R. Shapiro
Confrontation Confronted, Richard D. Friedman, Margaret A. Berger, Steven R. Shapiro
Articles
The following article is an edited version of the amicus curiae brief filed with the Supreme Court of the United States in the October Term, 1998, in the case of Benjamin Lee Lilly v. Commonwealth of Virginia (No. 98-5881). "This case raises important questions about the meaning of the confrontation clause, which has been a vital ingredient of the fair trial right for hundreds of years," Professor Richard Friedman and his co-authors say. "In particular, this case presents the Court with an opportunity to reconsider the relationship between the confrontation clause and the law of hearsay." On June 10 the …
The Three Threats To Miranda, Yale Kamisar
The Three Threats To Miranda, Yale Kamisar
Articles
Miranda v. Arizona (1966) was the centerpiece of the Warren Court's "revolution" in American criminal procedure. Moreover, as Professor Stephen Schulhofer of the University of Chicago Law School has recently noted, a numbir of the Miranda safeguards "have now become entrenched in the interrogation procedures of many countries around the world." But Miranda is in serious trouble at home.
Duckworth V. Eagan: A Little-Noticed Miranda Case That May Cause Much Mischief, Yale Kamisar
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 …
A Dissent From The Miranda Dissents: Some Comments On The 'New' Fifth Amendment And The Old 'Voluntariness' Test, Yale Kamisar
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.
Brewer V. Williams, Massiah And Miranda: What Is 'Interrogation'? When Does It Matter?, Yale Kamisar
Brewer V. Williams, Massiah And Miranda: What Is 'Interrogation'? When Does It Matter?, Yale Kamisar
Articles
On Christmas Eve, 1968, a ten-year-old girl, Pamela Powers, disappeared while with her family in Des Moines, Iowa.2 Defendant Williams, an escapee from a mental institution and a deeply religious person, 3 was suspected of murdering her, and a warrant was issued for his arrest.4 Williams telephoned a Des Moines lawyer, McKnight, and on his advice surrendered himself to the Davenport, Iowa, police.5 Captain Learning and another Des Moines police officer arranged to drive the 160 miles to Davenport, pick up Williams, and return him directly to Des Moines. 6 Both the trial court 7 and the federal district court8 …
Foreword: Brewer V. Williams--A Hard Look At A Discomfiting Record, Yale Kamisar
Foreword: Brewer V. Williams--A Hard Look At A Discomfiting Record, Yale Kamisar
Articles
In recent decades, few matters have split the Supreme Court, troubled the legal profession, and agitated the public as much as the police interrogation-confession cases. The recent case of Brewer v. Williams3 is as provocative as any, because the Supreme Court there revdrsed the defendant's conviction for the "savage murder of a small child" even though no Justice denied his guilt,4 he was warned of his rights no fewer than five times, 5 and any "interrogation" that might have occurred seemed quite mild.6
Kauper's 'Judicial Examination Of The Accused' Forty Years Later—Some Comments On A Remarkable Article, Yale Kamisar
Kauper's 'Judicial Examination Of The Accused' Forty Years Later—Some Comments On A Remarkable Article, Yale Kamisar
Articles
For a long time before Professor Paul Kauper wrote "Judicial Examination of the Accused" in 1932, and for a long time thereafter, the "legal mind" shut out the de facto inquisitorial system that characterized American criminal procedure. Paul Kauper could not look away. He recognized the "naked, ugly facts" (p. 1224) and was determined to do something about them -more than thirty years before Escobedo v. Illinois' or Miranda v. Arizona.2
'Custodial Interrogation' Within The Meaning Of Miranda, Yale Kamisar
'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
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."
A Dissent From The Miranda Dissents: Some Comments On The 'New' Fifth Amendment And The Old 'Voluntariness' Test, Yale Kamisar
A Dissent From The Miranda Dissents: Some Comments On The 'New' Fifth Amendment And The Old 'Voluntariness' Test, Yale Kamisar
Articles
F the several conferences and workshops (and many lunch conversations) on police interrogation and confessions in which I have participated this past summer3 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.