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 …

The Rise, Decline And Fall(?) Of Miranda, Yale Kamisar

Articles

There has been a good deal of talk lately to the effect that Miranda1 is dead or dying-or might as well be dead.2 Even liberals have indicated that the death of Miranda might not be a bad thing. This brings to mind a saying by G.K. Chesterton: "Don't ever take a fence down until you know the reason why it was put up."4

How Much Does It Matter Whether Courts Work Within The "Clearly Marked" Provisions Of The Bill Of Rights Or With The "Generalities" Of The Fourteenth Amendment?, Yale Kamisar

Articles

We know that it really mattered to Justice Hugo Black. As he made clear in his famous dissenting opinion in Adamson v. California] Black was convinced that the purpose of the Fourteenth Amendment was to apply the complete protection of the Bill of Rights to the states.2 And, as he also made plain in his Adamson dissent, he was equally convinced that working with the "specific" or "explicit" guarantees of the first Eight Amendments would furnish Americans more protection than would applying the generalities of the Fourteenth Amendment.3

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.

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 …

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 …

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.

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 …

Confessions, Search And Seizure, And The Rehnquist Court, Yale Kamisar

Book Chapters

About the time William Rehnquist ascended to the Chief Justiceship of the United States, two events occurred that increased the likelihood that Miranda would enjoy a long life.

In Moran v. Burbine, a six to three majority held that a confession preceded by an otherwise valid waiver of a suspect's Miranda rights should not be excluded either (1) because the police misled an inquiring attorney when they told her they were not going to question the suspect she called about or (2) because the police failed to inform the suspect of the attorney's efforts to reach him.

Although Burbine has …

Miranda And Some Puzzles Of 'Prophylactic' Rules, Evan H. Caminker

Articles

Constitutional law scholars have long observed that many doctrinal rules established by courts to protect constitutional rights seem to "overprotect" those rights, in the sense that they give greater protection to individuals than those rights, as abstractly understood, seem to require.' Such doctrinal rules are typically called "prophylactic" rules.2 Perhaps the most famous, or infamous, example of such a rule is Miranda v. Arizona,' in which the Supreme Court implemented the Fifth Amendment's privilege against self-incrimination4 with a detailed set of directions for law enforcement officers conducting custodial interrogations, colloquially called the Miranda warnings. 5

Miranda Thirty-Five Years Later: A Close Look At The Majority And Dissenting Opinions In Dickerson, Yale Kamisar

Articles

Over the years, Miranda v. Arizona1 has been criticized both for going too far2 and for not going far enough.3 Nevertheless, on the basis of talks with many criminal procedure professors in the sixteen months between the time a panel of the Fourth Circuit upheld a statute (18 U.S.C. § 3501) purporting to "overrule" Miranda and a 7-2 majority of the Supreme Court overturned that ruling in the case of Dickerson v. United States,4 I am convinced that most criminal procedure professors wanted the Supreme Court to do what it did-"reaffirm" Miranda. This is not surprising. As Professor Grano once …

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.

Joe Grano: The 'Kid From South Philly' Who Educated Us All (In Tribute To Joseph D. Grano), Yale Kamisar

Articles

No serious student of police interrogation and confessions can write on the subject without building on Professor Joseph D. Grano's work or explaining why he or she disagrees with him (and doing so with considerable care). Nor is that all.

"Can (Did) Congress 'Overrule' Miranda?, Yale Kamisar

Articles

I think the great majority of judges, lawyers, and law professors would have concurred in Judge Friendly's remarks when he made them thirty-three years ago. To put it another way, I believe few would have had much confidence in the constitutionality of an anti-Miranda provision, usually known as § 3501 because of its designation under Title 18 of the United States Code, a provision of Title II of the Omnibus Crime Control and Safe Streets Act of 1968 (hereinafter referred to as the Crime Act or the Crime Bill), when that legislation was signed by the president on June 19, …

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, …

Confessions, Search And Seizure And The Rehnquist Court, Yale Kamisar

Articles

About the time William Rehnquist ascended to the Chief Justiceship of the United States, two events occurred that increased the likelihood that Miranda would enjoy a long life. In Moran v. Burbine,' a 6-3 majority held that a confession preceded by an otherwise valid waiver of a suspect's Miranda rights should not be excluded either (a) because the police misled an inquiring attorney when they told her they were not going to question the suspect she called about or (b) because the police failed to inform the suspect of the attorney's efforts to reach him.

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.

The Warren Court And Criminal Justice, Yale Kamisar

Book Chapters

Many commentators have observed that when we speak of "the Warren Court," we mean the Warren Court that lasted from 1962 (when Arthur Goldberg replaced Felix Frankfurter) to 1969 (when Earl Warren retired). But when we speak of the Warren Court's "revolution" in American criminal procedure we mean the Warren Court that lasted from 1961 (when the landmark case of Mapp v. Ohio was decided) to 1966 or 1967. In its final years, the Warren Court was not the same Court that had handed down Mapp or Miranda.

On The 'Fruits' Of Miranda Violations, Coerced Confessions, And Compelled Testimony, Yale Kamisar

Articles

Professor Akhil Reed Amar and Ms. Renee B. Lettow have written a lively, provocative article that will keep many of us who teach constitutional-criminal procedure busy for years to come. They present a reconception of the "first principles" of the Fifth Amendment, and they suggest a dramatic reconstruction of criminal procedure. As a part of that reconstruction, they propose, inter alia, that at a pretrial hearing presided over by a judicial officer, the government should be empowered to compel a suspect, under penalty of contempt, to provide links in the chain of evidence needed to convict him.

The Warren Court And Criminal Justice: A Quarter-Century Retrospective, Yale Kamisar

Articles

Many commentators have observed that when we speak of "the Warren Court," we mean the Warren Court that lasted from 1962 (when Arthur Goldberg replaced Felix Frankfurter) to 1969 (when Earl Warren retired). But when we speak of the Warren Court's "revolution" in American criminal procedure we mean the Warren Court that lasted from 1961 (when the landmark case of Mapp v. Ohio was decided) to 1966 or 1967. In its final years, the Warren Court was not the same Court that had handed down Mapp or Miranda v. Arizona.

Remembering The 'Old World' Of Criminal Procedure: A Reply To Professor Grano, Yale Kamisar

Articles

When I graduated from high school in 1961, the "old world" of criminal procedure still existed, albeit in its waning days; when I graduated from law school in 1968, circa the time most of today's first-year law students were arriving on the scene, the "new world" had fully dislodged the old. Indeed, the force of the new world's revolutionary impetus already had crested. Some of the change that the criminal procedure revolution effected was for the better, but much of it, at least as some of us see it, was decidedly for the worse. My students, however, cannot make the …

Police Interrogation And Confessions, Yale Kamisar

Book Chapters

In the police interrogation room, where, until the second third of the century, police practices were unscrutinized and virtually unregulated, constitutional ideals collide with the grim realities of law enforcement.

Miranda: The Case, The Man, And The Players, Yale Kamisar

Reviews

On the eve of America's bicentennial, the American Bar Association told its members of a plan to publish a book about the "milestone events" in 200 years of American legal history, and invited them to vote on the milestones to be included. When the balloting was over, Miranda v. Arizona1 - "the high-water mark" of the Warren Court's revolution in American criminal procedure2 - had received the fourth highest number of votes.3 I venture to say that if members of the general public had been asked to list the "most regrettable" or "most unfortunate" milestones in American legal history, Miranda …

The Warren Court (Was It Really So Defense-Minded?), The Burger Court (Is It Really So Prosecution-Oriented?), And Police Investigatory Practices, Yale Kamisar

Book Chapters

In one sense the Warren Court's "revolution" in American criminal procedure may be said to. have been launched by the 1956 case of Griffin v. Illinois (establishing an indigent criminal defendant's right to a free transcript on appeal, at least under certain circumstances) and to have been significantly advanced by two 1963 cases: Gideon v. Wainwright (entitling an indigent defendant to free counsel, at least in serious criminal cases) and Douglas v. California (requiring a state to provide an indigent with counsel on his first appeal from a criminal conviction). But these were not the cases that plunged the Warren …

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

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

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