Supreme Court of the United States Commons^™

Practical Truth: The Value Of Apparent Honesty In Supreme Court Opinions, Timothy C. Macdonnell

Catholic University Law Review

The focus of this Essay is on the importance that apparent honesty has on the persuasive force of Supreme Court opinions. Legal scholars and Supreme Court Justices have observed the connection between the Court’s legitimacy and the persuasive force of its opinions. Because the Court’s opinions are both an exercise of the Court’s power and the justification for that power, the Justices’ opinions must be persuasive.

The study of rhetoric has long recognized three methods of persuading an audience of the correctness of a particular view. Those methods are appeals to logic, credibility, and emotion. Of theses three methods, I …

The Future Of Confession Law: Toward Rules For The Voluntariness Test, Eve Brensike Primus

Michigan Law Review

Confession law is in a state of collapse. Fifty years ago, three different doctrines imposed constitutional limits on the admissibility of confessions in criminal cases: Miranda doctrine under the Fifth Amendment, Massiah doctrine under the Sixth Amendment, and voluntariness doctrine under the Due Process Clauses of the Fifth and Fourteenth Amendments. But in recent years, the Supreme Court has gutted Miranda and Massiah, effectively leaving suspects with only voluntariness doctrine to protect them during police interrogations. The voluntariness test is a notoriously vague case-by-case standard. In this Article, I argue that if voluntariness is going to be the framework for …

J.D.B. V. North Carolina And The Reasonable Person, Christopher Jackson

Michigan Law Review First Impressions

This Term, the Supreme Court was presented with a prime opportunity to provide some much-needed clarification on a "backdrop" issue of law-one of many topics that arises in a variety of legal contexts, but is rarely analyzed on its own terms. In J.D.B. v. North Carolina, the Court considered whether age was a relevant factor in determining if a suspect is "in custody" for Miranda purposes, and thus must have her rights read to her before being questioned by the police. Miranda, like dozens of other areas of law, employs a reasonable person test on the custodial question: it asks …

Yale Kamisar: Warrior Scholar, Francis A. Allen

Michigan Law Review

My association with Yale Kamisar dates back to the 1950s. At that time I became aware of the interesting publications of a young faculty member at the University of Minnesota. The articles were well done, most of them dealing with the Supreme Court's notable expansion of constitutional doctrine relating to criminal procedure, then at full tide, a field in which I also was writing. In addition, Yale had published a remarkable article on the subject of euthanasia, impressive for the thoroughness of its research and the clarity and force of its argument. Fortunately, I decided to write to Yale and …

Saying Goodbye To A Legend: A Tribute To Yale Kamisar - My Mentor, Teacher, And Friend, Eve Brensike Primus

Michigan Law Review

I remember it as though it was yesterday - dozens of students filing into Hutchins Hall for their first criminal procedure class. The legendary Yale Kamisar walked briskly to the front of the room, his upper body moving first slightly forward and then ever so slightly backward in almost a rocking manner. He carried nothing except for a two-inch black notebook, tattered at the edges and marked with brightly colored tabs protruding from each page. Paying no attention to the hundreds of eyes fixed on his every move, he dropped the notebook on the podium, stepped up to the blackboard, …

Some Effects Of Identity-Based Social Movements On Constitutional Law In The Twentieth Century, William N. Eskridge Jr.

Michigan Law Review

What motivated big changes in constitutional law doctrine during the twentieth century? Rarely did important constitutional doctrine or theory change because of formal amendments to the document's text, and rarer still because scholars or judges "discovered" new information about the Constitution's original meaning. Precedent and common law reasoning were the mechanisms by which changes occurred rather than their driving force. My thesis is that most twentieth century changes in the constitutional protection of individual rights were driven by or in response to the great identity-based social movements ("IBSMs") of the twentieth century. Race, sex, and sexual orientation were markers of …

(E)Racing The Fourth Amendment, Devon W. Carbado

Michigan Law Review

It's been almost two years since I pledged allegiance to the United States of America - that is to say, became an American citizen. Before that, I was a permanent resident of America and a citizen of the United Kingdom. Yet, I became a black American long before I acquired American citizenship. Unlike citizenship, black racial naturalization was always available to me, even as I tried to make myself unavailable for that particular Americanization process. Given the negative images of black Americans on 1970s British television and the intra-racial tensions between blacks in the U.K. and blacks in America, I …

We Can Do This The Easy Way Or The Hard Way: The Use Of Deceit To Induce Consent Searches, Rebecca Strauss

Michigan Law Review

In October of 1995, Aaron Salvo was studying and living at Ashland College. College officials informed local FBI agents that they suspected Salvo of possible child molestation and related conduct based on incriminating electronic mail. FBI agents approached Salvo at his dormitory, asked to speak with him in private about the suspicious mail, and suggested they speak in Salvo's dorm room. Salvo agreed to speak with the officers, but declined to do so in his room because his roommate was there, and he did not want to get anyone else involved in the embarrassing nature of the upcoming conversation. Salvo …

Miranda'S Mistake, William J. Stuntz

Michigan Law Review

The oddest thing about Miranda is its politics - a point reinforced by the decision in, and the reaction to, Dickerson v. United States. In Dickerson, the Supreme Court faced the question whether Miranda ought to be overturned, either directly or by permitting legislative overrides. The lawyers, the literature, and the Court split along right-left - or, in the Court's case, right-center - lines, with the right seeking to do away with Miranda's restrictions on police questioning, and the left (or center) seeking to maintain them. The split is familiar. Reactions to Miranda have always divided along ideological lines, with …

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 …

The Paths Not Taken: The Supreme Court's Failures In Dickerson, Paul G. Cassell

Michigan Law Review

Where's the rest of the opinion? That was my immediate reaction to reading the Supreme Court's terse decision in Dickerson, delivered to me via email from the clerk's office a few minutes after its release. Surely, I thought, some glitch in the transmission had eliminated the pages of discussion on the critical issues in the case. Yet, as it became clear that I had received all of the Court's opinion, my incredulity grew.

Miranda, Dickerson, And The Puzzling Persistence Of Fifth Amendment Exceptionalism, Stephen J. Schulhofer

Michigan Law Review

Dickerson v. United States preserves the status quo regime for judicial oversight of police interrogation. That result could be seen, in the present climate, as a victory for due process values, but there remain many reasons for concern that existing safeguards are flawed - that they are either too restrictive or not restrictive enough. Such concerns are partly empirical, of course. They depend on factual assessments of how much the Miranda rules do restrict the police. But such concerns also reflect a crucial, though often unstated, normative premise; they presuppose a certain view of how much the police should be …

Miranda, The Constitution, And Congress, David A. Strauss

Michigan Law Review

Are Miranda warnings required by the Constitution, or not? If they are, why has the Supreme Court repeatedly said that the rights created by Miranda are "not themselves rights protected by the Constitution"? If not, why can't an Act of Congress, such as 18 U.S.C. 3501, declare them to be unnecessary? These were the central questions posed by United States v. Dickerson. It is not clear that the majority opinion ever really answered them. The majority said that "Miranda is constitutionally based," that Miranda has "constitutional underpinnings," that Miranda is "a constitutional decision," and that Miranda "announced a constitutional rule." …

Questioning The Relevance Of Miranda In The Twenty-First Century, Richard A. Leo

Michigan Law Review

Miranda v. Arizona is the most well-known criminal justice decision - arguably the most well-known legal decision - in American history. Since it was decided in 1966, the Miranda decision has spawned voluminous newspaper coverage, political and legal debate, and academic commentary. The Miranda warnings themselves have become so well-known through the media of television that most people recognize them immediately. As Patrick Malone has pointed out, the Miranda decision has added its own lexicon of words and phrases to the American language. Perhaps with this understanding in mind, George Thomas recently suggested that the Miranda warnings are more well-known …

Identifying And (Re)Formulating Prophylactic Rules, Safe Harbors, And Incidental Rights In Constitutional Criminal Procedure, Susan R. Klein

Michigan Law Review

The Miranda conundrum runs something like this. If the Miranda decision represents true constitutional interpretation, and all unwarned statements taken during custodial interrogation are "compelled" within the meaning of the Self-Incrimination Clause, the impeachment and "fruits" exceptions to Miranda should fall. If it is not true constitutional interpretation, than the Court has no business reversing state criminal convictions for its violation. I offer here what I hope is a satisfying answer to this conundrum, on both descriptive and normative levels, that justifies not only Miranda but a host of similar Warren, Burger, and Rehnquist Court decisions as well. In Part …

In The Stationhouse After Dickerson, Charles D. Weisselberg

Michigan Law Review

Miranda v. Arizona established the high water mark of the protections afforded an accused during a custodial interrogation. During the decades that followed, the United States Supreme Court allowed Miranda's foundation to erode, inviting a direct challenge to the landmark ruling. In Dickerson v. United States, the Court turned back such a challenge and placed Miranda upon a more secure, constitutional footing. This Article explores the impact of Dickerson in the place where Miranda was meant to matter most: the stationhouse. As I have described elsewhere, Supreme Court decisions have influenced a number of California law enforcement agencies to instruct …

Deceptive Police Interrogation Practices: How Far Is Too Far?, Laurie Magid

Michigan Law Review

Virtually all interrogations - or at least virtually all successful interrogations - involve some deception. As the United States Supreme Court has placed few limits on the use of deception, the variety of deceptive techniques is limited chiefly by the ingenuity of the interrogator. Interrogators still rely on the classic "Mutt and Jeff," or "good cop, bad cop," routine. Interrogators tell suspects that nonexistent eyewitnesses have identified them, or that still at-large accomplices have given statements against them. Interrogators have been known to put an unsophisticated suspect's hand on a fancy, new photocopy machine and tell him that the "Truth …

Miranda'S Failure To Restrain Pernicious Interrogation Practices, Welsh S. White

Michigan Law Review

As Yale Kamisar's writings on police interrogation demonstrate, our simultaneous commitments to promoting law enforcement's interest in obtaining confessions and to protecting individuals from overreaching interrogation practices have created a nearly irreconcilable tension. If the police must be granted authority to engage in effective questioning of suspects, it will obviously be difficult to insure that "the terrible engine of the criminal law . . . not . . . be used to overreach individuals who stand helpless against it." If we are committed to accommodating these conflicting interests, however, some means must be found to impose appropriate restraints on the …

Miranda'S Fall?, Kenji Yoshino

Michigan Law Review

If one wishes to revisit a classic, Albert Crunus's The Fall is a riskier choice than Harper Lee's To Kill a Mockingbird, which Steven Lubet eloquently discussed last year in these pages. It is not only that Camus's work will be less familiar to legal audiences than Lee's, despite the fact that The Fall is becoming recognized through critical "revisitation" as perhaps Crunus's greatest novel. It is also that the legal protagonist of The Fall, Jean-Baptiste Clamence, does not have Atticus Finch's immediate appeal. Finch is idealistic, Clamence is existential; Finch is pious, Clamence is debauched; Finch is hopeful, Clamence …

Oregon V. Elstad Revisited: Urging State Court Judges To Depart From The U.S. Supreme Court's Narrowing Of Miranda, Claudia R. Barbieri

University of the District of Columbia Law Review

Imagine an average young man on the threshold of adulthood, living in a medium-sized town in a middle-class family. Still in his early years, he gets into a little local trouble and one day finds the police at his door. They ask him questions about a burglary. He panics, and as he racks his brain for some scrap of legal knowledge that might get him out of this frightening situation, he admits that he knows about the crime, stating he was there. The police become more persistent, telling him they know about his involvement, asking him if he wants to …

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 …

The Public Safety Exception To Miranda: Analyzing Subjective Motivation, Marc Schuyler Reiner

Michigan Law Review

This Note argues, however, that the appropriate inquiry under Quarles is whether an actual and reasonable belief in an emergency motivated the interrogating officer. This Note proposes a two-prong test to facilitate this inquiry. The subjective motivation prong evaluates the officer's subjective motivation as revealed by objective factors: the. content of the officer's questions, when he asked them, and when the suspect received Miranda warnings. The objective reasonableness prong looks at the objective circumstances to determine the reasonableness of the officer's belief in an emergency.

Part I demonstrates that the Quarles opinion actually contemplates and requires analysis of the officer's …

The Public Safety Exception To Miranda: Analyzing Subjective Motivation, Marc Schuyler Reiner

Michigan Law Review

This Note argues, however, that the appropriate inquiry under Quarles is whether an actual and reasonable belief in an emergency motivated the interrogating officer. This Note proposes a two-prong test to facilitate this inquiry. The subjective motivation prong evaluates the officer's subjective motivation as revealed by objective factors: the. content of the officer's questions, when he asked them, and when the suspect received Miranda warnings. The objective reasonableness prong looks at the objective circumstances to determine the reasonableness of the officer's belief in an emergency.

Part I demonstrates that the Quarles opinion actually contemplates and requires analysis of the officer's …

Chopping Miranda Down To Size, Michael Chertoff

Michigan Law Review

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

Fifth Amendment First Principles: The Self-Incrimination Clause, Akhil Reed Amar, Renée B. Lettow

Michigan Law Review

In Part I of this article, we examine the global puzzle of the Self-Incrimination Clause and the local confusion or perversion lurking behind virtually every key word and phrase in the clause as now construed. In Part II we elaborate our reading of the clause and show how it clears up the local problems and solves the overall puzzle.

Reply: Self-Incrimination And The Constitution: A Brief Rejoinder To Professor Kamisar, Akhil Reed Amar, Renée B. Lettow

Michigan Law Review

A Reply to Yale Kamisar's Response to the "Fifth Amendment Principles: The Self-Incrimination Clause"

Interaction Between State And Federal Right To Counsel: The Overruling Of Bartolomeounsel: The Overruling Of Bartolomeo, Joseph D. Sullivan

Touro Law Review

No abstract provided.

The Law Of Pretrial Interrogation, Department Of Justice Office Of Legal Policy

University of Michigan Journal of Law Reform

The existing rules in the United States governing the questioning of suspects in custody are based on the Supreme Court's five to four decision in Miranda v. Arizona. The Court in Miranda promulgated a new, code-like set of rules for custodial questioning, including the creation of a right to counsel in connection with custodial questioning, a requirement of warnings, a prohibition of questioning unless the suspect affirmatively waives the rights set out in the warnings, and a prohibition of questioning if the suspect asks for a lawyer or indicates in any manner that he is unwilling to talk. These …

Interrogation Without Questions: Rhode Island V. Innis And United States V. Henry, Welsh S. White

Michigan Law Review

In Rhode Island v. Innis, the Court defined "interrogation" within the meaning of Miranda; and in United States v. Henry, it defined "deliberate elicitation" within the meaning of Massiah. This article explores the implications of Innis and Henry, suggests readings of the new tests consistent with their purposes, and applies the tests to several situations where the scope of the fifth and sixth amendment protections remains unclear.

Taxpayer Rights In Noncustodial Irs Investigations After Beckwith V. United States, Curtis L. Christensen

University of Michigan Journal of Law Reform

The recent Supreme Court decision in Beckwith v. United States, holding that Miranda does not extend to noncustodial tax investigations, has important implications with respect to the News Release doctrine and the involuntary consent grounds considered in motions to suppress evidence. This article will examine Beckwith and its potential significance with respect to these other doctrines, discussing the factors which the IRS and the courts should consider in order to assure fair treatment of taxpayers during investigations.