Law Commons^™

Underage And Unprotected: Federal Grand Juries, Child Development, And The Systemic Failure To Protect Minors Subpoenaed As Witnesses, Lucy Litt

University of Cincinnati Law Review

Grand juries in the United States were originally intended to protect people from unwarranted criminal prosecution by the government; however, criticism of federal grand juries in the U.S. throughout the past five decades demonstrates that these deliberative bodies protect prosecutors at the expense of the people subjected to their investigations. Worse still, federal grand jury proceedings circumvent fundamental constitutional rights, direct judicial oversight, and many of the procedural protections of criminal trials; they enable prosecutors to strip unaccused individuals subpoenaed solely for witness testimony of their safety, rights, and liberty. Prosecutorial misconduct has received increasingly widespread attention, especially in recent …

Cyberterrorism And The Public Safety Exception To Miranda, Mitch Snyder

Dickinson Law Review (2017-Present)

Cyberattacks against U.S. targets are becoming increasingly common. To effectively combat these attacks, law enforcement officers need the tools to respond to and prevent cyberattacks before they can occur.

In recent years, hackers have launched cyberattacks against infrastructural targets such as power grids, oil and gas distribution computer systems, and telecommunications networks. Cyberattacks have also targeted U.S. government websites, including the U.S. Department of Transportation and the U.S. Department of Treasury. Recently, a cyberattack against SolarWinds, a Texas-based I.T. company, compromised the computer and network systems of federal, state, and local governments; critical infrastructure entities; and other private sector organizations. …

The Evolution Of Juvenile Justice From The Book Of Leviticus To Parens Patriae: The Next Step After In Re Gault, Donald E. Mcinnis, Shannon Cullen, Julia Schon

Loyola of Los Angeles Law Review

Since the arrival of the Pilgrims, American jurisprudence has known that its law-breaking children must be treated differently than adults. How children are treated by the law raises ethical and constitutional issues. This Article questions the current approach, which applies adult due process protections to children who are unable to fully understand their constitutional rights and the consequences of waiving those rights. The authors propose new Miranda warnings and a Bill of Rights for Children to protect children and their constitutional right to due process under the law.

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 …

Where The Constitution Falls Short: Confession Admissibility And Police Regulation, Courtney E. Lewis

Dickinson Law Review (2017-Present)

A confession presented at trial is one of the most damning pieces of evidence against a criminal defendant, which means that the rules governing its admissibility are critical. At the outset of confession admissibility in the United States, the judiciary focused on a confession’s truthfulness. Culminating in the landmark case Miranda v. Arizona, judicial concern with the reliability of confessions shifted away from whether a confession was true and towards curtailing unconstitutional police misconduct. Post-hoc constitutionality review, however, is arguably inappropriate. Such review is inappropriate largely because the reviewing court must find that the confession was voluntary only by …

Fourth Amendment Anxiety, Stephen E. Henderson, Kiel Brennan-Marquez

Stephen E Henderson

Juvenile False Confessions: Juvenile Psychology, Police Interrogation Tactics, And Prosecutorial Discretion, Marco Luna

Nevada Law Journal

No abstract provided.

Extending Miranda: Prohibition On Police Lies Regarding The Incriminating Evidence, Rinat Kitai-Sangero

San Diego Law Review

This Article addresses the question of whether lying to suspects during interrogations regarding the incriminating evidence against them is a legitimate deceit. The search for truth goes hand-in-hand with the human yearning for knowledge. Generally, lying is perceived as reprehensible. Certain types of lies, such as those concerning medical treatment or the sale of a house, may even result in civil or criminal liability. Despite the condemnation of lying, lying to suspects during interrogations is a common phenomenon, and has even been dubbed an “art.” Part II of the article presents how police use deceit and lies during interrogations in …

Miranda’S Near Death Experience: Reflections On The Occasion Of Miranda’S Fiftieth Anniversary, Eugene R. Milhizer

Catholic University Law Review

Miranda v. Arizona is widely regarded as one of the most controversial Supreme Court decisions in U.S. history. Shortly after the case was decided, Gallop Polls indicated that 63% of the public felt the Supreme Court was too soft on criminals. But despite its controversy, Miranda has become so widely accepted in popular culture that most people cannot imagine a criminal justice system without it. This wide spread acceptance, however, is more of a recent phenomenon in the landmark case’s history.

This article discusses Miranda’s tumultuous past; its harsh criticism from the legal community, academics, and the public at …

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 …

What Constitutes "Custody" Under Miranda?: An Examination Of Maine's Test As Applied In State V. Kittredge, Elizabeth L. Tull

Maine Law Review

In recent years, the Maine Supreme Judicial Court, sitting as the Law Court, has issued several opinions addressing whether a defendant’s statements are admissible when made to law enforcement in the absence of “Miranda warnings.” These cases have similar features: a defendant made a personally incriminating statement; raised an appeal arguing that Miranda warnings should have been, but were not, read to him or her; and the Court—in many cases—determined that the defendant was not technically in police custody, and thus there was no requirement to recite Miranda warnings to him or her. Miranda warnings are an important safeguard that …

State V. Lovejoy: Should Pre-Arrest, Pre-Miranda Silence Be Admissible During The State's Case-In-Chief As Substantive Evidence Of Guilt?, Mark A. Rucci

Maine Law Review

Article 1, section 6 of Maine Constitution reads in part that “[t]he accused shall not be compelled to give evidence against himself or herself, nor be deprived of life, liberty, property, or privileges . . . .” Further, the Law Court has held that “the State constitutional protection against self-incrimination is the equivalent of the Fifth Amendment." However, as with most provisions of the Constitution, the protection against self-incrimination is open to interpretation. While the Supreme Court has answered some questions surrounding the Fifth Amendment’s protections, it has left many decisions regarding its scope largely within the purview of the …

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 …

Revisiting The Public Safety Exception To Miranda For Suspected Terrorists: Dzhokhar Tsarnaev And The Bombing Of The 2013 Boston Marathon, Hannah Lonky

Journal of Criminal Law and Criminology

This Comment examines the application of the public safety exception to Miranda to cases of domestic terrorism, looking particularly at the case of Dzhokhar Tsarnaev and the 2013 Boston Marathon bombing. By comparing the Department of Justice’s War on Terror policies to the Warren Court’s rationale for Miranda, this Comment argues that courts should require law enforcement officers to have reasonable knowledge of an immediate threat to public safety before they may properly invoke the Quarles public safety exception.

Moving Beyond Miranda: Concessions For Confessions, Scott W. Howe

Northwestern University Law Review

The law governing police interrogation provides perverse incentives. For criminal suspects, the law rewards obstruction and concealment. For police officers, it honors deceit and psychological aggression. For the courts and the rest of us, it encourages blindness and rationalization. This Article contends that the law could help foster better behaviors. The law could incentivize criminals to confess without police trickery and oppression. It could motivate police officers involved in obtaining suspect statements to avoid chicanery and duress. And, it could summon courts and the rest of us to speak more truthfully about whether suspect admissions are the product of informed, …

Shakin' And Bakin': The Supreme Court's Remarkable Criminal Law Rulings Of The 1999 Term, William E. Hellerstein

Touro Law Review

No abstract provided.

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

Kit Kinports

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, Florida v. Powell, …

Policing In The Era Of Permissiveness: Mitigating Misconduct Through Third-Party Standing, Julian A. Cook Iii

Brooklyn Law Review

On April 4, 2015, Walter L. Scott was driving his vehicle when he was stopped by Officer Michael T. Slager of the North Charleston, South Carolina, police department for a broken taillight. A dash cam video from the officer’s vehicle showed the two men engaged in what appeared to be a rather routine verbal exchange. Sometime after Slager returned to his vehicle, Scott exited his car and ran away from Slager, prompting the officer to pursue him on foot. After he caught up with Scott in a grassy field near a muffler establishment, a scuffle between the men ensued, purportedly …

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 …

Prosecutorial Ventriloquism: People V. Tom And The Substantive Use Of Post-Arrest, Pre-Miranda Silence To Infer Consciousness Of Guilt, Joshua Bornstein

Loyola of Los Angeles Law Review

No abstract provided.

Miranda Or Its Equivalent: The Two “W’S” Of Reasonable Conveyance, Amanda Miller

Touro Law Review

No abstract provided.

Moving Beyond Miranda: Concessions For Confessions, Scott Howe

Scott W. Howe

Abstract: The law governing police interrogation provides perverse incentives. For criminal suspects, the law rewards obstruction and concealment. For police officers, it honors deceit and psychological aggression. For the courts and the rest of us, it encourages blindness and rationalization. This Article contends that the law could help foster better behaviors. The law could incentivize criminals to confess without police trickery and oppression. It could motivate police officers involved in obtaining suspect statements to avoid chicanery and duress. And, it could summon courts and the rest of us to speak more truthfully about whether suspect admissions are the product of …

The Hidden Psychology Of Constitutional Criminal Procedure, Tonja Jacobi, Jesse-Justin Cuevas

Tonja Jacobi

There is vast empirical evidence of the difference in men and women’s perceptions of and responses to police authority, their speech patterns and conduct. Yet these differences are rarely reflected in constitutional criminal procedure law, despite many of its rules hinging on a person’s manner of expression or subtleties of behavior. Similar evidence exists for the systematic impact of juvenile status and intellectual disability, but only modest and ad hoc consideration has been given to these factors. The result is that the “reasonable person” is actually implicitly a white male, adult and able-minded. His speech and conduct are treated as …

Miranda 2.0, Tonja Jacobi

Tonja Jacobi

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 directed specifically at this foundational challenge to the justice system. Miranda 2.0 is long overdue; it should require: warning suspects how long they can be interrogated for; delivering …

Privilege Against Self-Incrimination - Right To Compel A Suspect To Perform Physical Acts; City Of Piqua V. Hinger, Charles P. Brumbach

Akron Law Review

The writer respectfully disagrees with the Ohio Supreme Court's interpretation of Schmerber as standing for the proposition that such compelled evidence is admissible under the Fifth Amendment to the Constitution. In Schmerber the court merely recognized the evidential distinction between real and testimonial or communicative evidence and ruled that the distinction was determinative in that case. The court acknowledged that there are many possible situations in which the distinction could not so readily be applied. It is submitted that the facts of the instant case present one of those situations.

Evidence - Admissibility Of Statements To Parole Officer - Miranda Warnings; State V. Gallagher, Thomas A. Treadon

Akron Law Review

The opinion handed down in this recent decision from the Montgomery County Court of Appeals examined a question of first impression in the courts of Ohio. The issue presented was "whether a parole or probation officer is a law enforcement officer within the contemplation of Miranda and thus subject to the Miranda requirements of constitutional warnings to suspects during custodial interrogation...."

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 …

Mirandizing Terrorism Suspects? The Public Safety Exception, The Rescue Doctrine, And Implicit Analogies To Self-Defense, Defense Of Others, And Battered Woman Syndrome, Bruce Ching

Catholic University Law Review

In its 1984 decision New York v. Quarles, the Supreme Court announced the public safety exception, under which statements made by un-Mirandized suspects can be admissible when made in response to questions reasonably asked to protect the safety of the arresting officers or the general public. During the investigation of terrorism cases, law enforcement agencies have begun to extend the time of un-Mirandized questioning of suspects, with the hope that courts will find that the public safety exception makes the suspects’ statements admissible in the ensuing prosecutions.

This Article argues that in announcing the public safety exception, …