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Full-Text Articles in Law
The Future Of Confession Law: Toward Rules For The Voluntariness Test, Eve Brensike Primus
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 …
Evaluating Punishment In Purgatory: The Need To Separate Pretrial Detainees' Conditions-Of-Confinement Claims From Inadequate Eighth Amendment Analysis, David C. Gorlin
Evaluating Punishment In Purgatory: The Need To Separate Pretrial Detainees' Conditions-Of-Confinement Claims From Inadequate Eighth Amendment Analysis, David C. Gorlin
Michigan Law Review
The Due Process Clause prohibits all "punishment" of pretrial detainees- individuals that are held by the Government, but not adjudged guilty of any crime. The Eighth Amendment only prohibits the infliction of "cruel and unusual punishments" upon convicted individuals. Despite the Supreme Court's insistence that the Due Process Clause, and not the Eighth Amendment, protects pretrial detainees from deplorable and harmful conditions of confinement, most federal circuits now assess pretrial detainees' claims under Eighth Amendment standards. Under the Eighth Amendment framework, pretrial detainees must establish that conditions subjected them to a substantial risk of serious harm, and that jailers were …
The Pathological Politics Of Criminal Law, William J. Stuntz
The Pathological Politics Of Criminal Law, William J. Stuntz
Michigan Law Review
Substantive criminal law defines the conduct that the state punishes. Or does it? If the answer is yes, it should be possible, by reading criminal codes (perhaps with a few case annotations thrown in), to tell what conduct will land you in prison. Most discussions of criminal law, whether in law reviews, law school classrooms, or the popular press, proceed on the premise that the answer is yes. Law reform movements regularly seek to broaden or narrow the scope of some set of criminal liability rules, always on the assumption that by doing so they will broaden or narrow 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 …
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 …
Identifying And (Re)Formulating Prophylactic Rules, Safe Harbors, And Incidental Rights In Constitutional Criminal Procedure, Susan R. Klein
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 …
Deceptive Police Interrogation Practices: How Far Is Too Far?, Laurie Magid
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 …
Scientific Investigation And Defendants' Rights, B. J. George Jr.
Scientific Investigation And Defendants' Rights, B. J. George Jr.
Michigan Law Review
Advances in science, medicine and industry have made much of the world a more pleasant place in which to live. In general more men are living a physically more satisfying life in more comfortable surroundings than preceding generations. But with this has come a parallel increase in criminality to the point that the term "crime wave" is heard with increasing frequency. Many crimes are facilitated in their commission by adaption or application of new scientific discoveries by criminal elements. A natural consequence is that already overburdened police departments turn as quickly as is financially possible to new scientific techniques in …