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Full-Text Articles in Law
Declining To State A Name In Consideration Of The Fifth Amendment's Self-Incrimination Clause And Law Enforcement Databases After Hiibel, Joseph R. Ashby
Declining To State A Name In Consideration Of The Fifth Amendment's Self-Incrimination Clause And Law Enforcement Databases After Hiibel, Joseph R. Ashby
Michigan Law Review
In response to a report of an argument on a public sidewalk, a police officer approaches two people standing in the vicinity of the reported dispute. The officer requests that each person provide her name so the officer can run the names through databases to which the police department subscribes. After searching each name through various databases, the officer might discover that one of the individuals made several purchases of cold medicine containing pseudoephedrine and that the other just received a license from the State to procure certain hazardous chemicals. These two people might be in the early stages of …
Miranda'S Mistake, William J. Stuntz
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 …
The Paths Not Taken: The Supreme Court's Failures In Dickerson, Paul G. Cassell
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
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
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." …
In The Stationhouse After Dickerson, Charles D. Weisselberg
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 …
Miranda'S Failure To Restrain Pernicious Interrogation Practices, Welsh S. White
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 …
Separated At Birth But Siblings Nonetheless: Miranda And The Due Process Notice Cases, George C. Thomas Iii
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 …
Counter-Revolution In Constitutional Criminal Procedure? Two Audiences, Two Answers, Carol S. Steiker
Counter-Revolution In Constitutional Criminal Procedure? Two Audiences, Two Answers, Carol S. Steiker
Michigan Law Review
For the purposes of my argument, I adapt Professor Meir Dan-Cohen's distinction (which he in turn borrowed from Jeremy Bentham) between "conduct" rules and "decision" rules. Bentham and Dan-Cohen make this distinction in the context of substantive criminal law; for their purposes, "conduct" rules are addressed to the general public in order to guide its behavior (for example, "Let no person steal") and "decision" rules are addressed to public officials in order to guide their decisionmaking about the consequences of violating conduct rules (for example, "Let the judge cause whoever is convicted of stealing to be hanged"). But as any …
Commissioner May Examine Taxpayer's Records For Years Barred By Statute Of Limitations Without Proving Reasonable Suspicion Of Fraud--United States V. Powell, Michigan Law Review
Commissioner May Examine Taxpayer's Records For Years Barred By Statute Of Limitations Without Proving Reasonable Suspicion Of Fraud--United States V. Powell, Michigan Law Review
Michigan Law Review
The Commissioner of Internal Revenue has power to summon witnesses and to examine records in order to ascertain the correctness of a taxpayer's return. If a summons is not obeyed or if the records sought are not produced, the Commissioner may seek enforcement by applying to the proper federal district court. Although the Commissioner's investigative powers are broad, they are not unlimited. In the absence of fraud, he must act within the confines of a three-year statute of limitations. In addition, the Code makes it abundantly clear that taxpayers may not be subjected to unnecessary examinations or investigations and that …
The Constitution And Contempt Of Court, Ronald Goldfarb
The Constitution And Contempt Of Court, Ronald Goldfarb
Michigan Law Review
Few legal devices find conflict within the lines of our Constitution with the ubiquity of the contempt power. These conflicts involve issues concerning the governmental power structure such as the separation of powers and the delicate balancing of federal-state relations. In addition, there are civil rights issues attributable to the conflict between the use of the contempt power and such vital procedural protections as the right to trial by jury, freedom from self-incrimination, double jeopardy, and indictment-to name only the most recurrent and controversial examples. Aside from these problems, there are other civil liberties issues, such as those involving freedom …
Legislation - Witness Immunity Act Of 1954 - Constitutional And Interpretative Problem, George S. Flint S.Ed.
Legislation - Witness Immunity Act Of 1954 - Constitutional And Interpretative Problem, George S. Flint S.Ed.
Michigan Law Review
The passage in August, 1954 of a federal statute granting immunity under specified conditions to witnesses before congressional committees and in the federal courts marks a third legislative experiment designed to soften the effect of the Fifth Amendment as a limitation on the investigatory power of Congress. The first two attempts were less than successful. This comment will discuss the historical background of immunity legislation, and some possible constitutional pitfalls and problems of construction created by the statutory language.
Constitutional Law-Search And Seizure, Howard A. Jacobs S.Ed.
Constitutional Law-Search And Seizure, Howard A. Jacobs S.Ed.
Michigan Law Review
The most important step in the development of this constitutional provision came in 1886 in the famous case of Boyd v. United States. There the Court gave life to the Fourth Amendment by recognizing its intimate relation to the Fifth Amendment; thus laying the foundation for the federal rule that the Fifth Amendment protects every person from incrimination by the use of evidence obtained through search or seizure made in violation of his rights under the Fourth Amendment. With the exception of a temporary setback in 1903, this rule, as restated in the Weeks case, has effectively weathered a …
Administrative Law - Compulsory Process To Obtain Evidence - Unreasonable Search And Seizure, William C. Wetherbee, Jr.
Administrative Law - Compulsory Process To Obtain Evidence - Unreasonable Search And Seizure, William C. Wetherbee, Jr.
Michigan Law Review
That the issuance of a subpoena duces tecum must comply with the provisions of the Fourth Amendment against unreasonable searches and seizures was first established in the case of Boyd v. United States. The writ was there obtained for the purpose of extracting from a person evidence which was to be used against him in a criminal proceeding or forfeiture. This compulsory process which gave the state possession of a man's personal papers to incriminate him was considered a violation of not only the Fifth, but also the Fourth Amendment. The Supreme Court could have reached the same result …