Law Commons^™

The Inconsistencies Of Consent, Chunlin Leonhard

Catholic University Law Review

U.S. legal scholars have devoted a lot of attention to the role that consent has played in laws and judicial consent jurisprudence. This essay contributes to the discussion on consent by examining judicial approaches to determining the existence of consent in three selected areas--contracts, tort claims involving medical treatment, and criminal cases involving admissibility of confessions, from the late nineteenth century until the present. This article examines how courts have approached the basic factual question of finding consent and how judicial approaches in those areas have evolved over time. The review shows that the late 19th century saw courts adopting …

State V. Saldierna, Brian Boyd

NYLS Law Review

No abstract provided.

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

Touro Law Review

No abstract provided.

United States V. Patane: The Beginning Of The End Of Miranda, Bryce Chauncey Loveland

Touro Law Review

No abstract provided.

Putting The Cat Back In The Bag: Involuntary Confessions And Self-Incrimination, Joseph A. Iemma

Touro Law Review

No abstract provided.

Fare V. Michael C.: Juveniles And In Custodial Interrogations , Gregory S. Chudacoff

Pepperdine Law Review

In the principal case, Fare v. Michael C., the United States Supreme Court rejects the position of the Supreme Court of California that a juvenile's request for the presence of his probation officer constitutes an invocation of the juvenile's right to remain silent within the meaning of the Miranda decision. The author examines the rationale applied by each court enroute to this split of opinion, and suggests a middle ground which would accommodate the concerns of both courts with respect to the protection of an accused juvenile at the custodial interrogation stage.

Separate But Equal: Miranda's Rights To Silence And Counsel, Steven P. Grossman

All Faculty Scholarship

Three decades ago, the Supreme Court created a dubious distinction between the rights accorded to suspects in custody who invoke their right to silence and who invoke their right to counsel. This distinction significantly disadvantages those who do not have the good sense or good fortune to specify they want an attorney when they invoke their right to remain silent. This article argues that this distinction was flawed at its genesis and that it has led to judicial decisions that are inconsistent, make little sense, and permit police behavior that substantially diminishes the right to silence as described in Miranda …

You Have The Right To Remain Silent. Now Please Repeat Your Confession: Missouri V. Seibert And The Court's Attempt To Put An End To The Question-First Technique, Eric English

Pepperdine Law Review

No abstract provided.

Torture And The Interrogation Of Detainees, James P. Terry

Campbell Law Review

Following the September 11, 2001, attack on the United States by al Qaeda, the United States captured a number of "high value" detainees who were believed to have knowledge of imminent terrorist threats against our nation and its allies. CIA operatives, who understood that the use of torture is unlawful under both international and domestic law, and above all, is abhorrent to American values, interrogated the high value detainees. The United States rejects torture as a means to garner information - a fact reflected in our domestic criminal law, but also by the country's signature on the United Nations Convention …

Miranda Warnings And Terry Stops: Another Perspective, Eugene L. Shapiro

Barry Law Review

This article discusses the issue that federal Courts of Appeals have grappled with: whether an investigative stop upon less than probable cause under Terry v. Ohio may sometimes involve a need for Miranda warnings prior to questioning. It is the view of this commentary that post-Berkemer v. McCarty analyses by the Supreme Court concerning the Miranda “in custody” determination have had a singular influence upon judicial developments. There is now a very noticeable trend among the circuits towards the recognition of the appropriateness of Miranda warnings during some Terry stops.

The Age Of The Child: Interrogating Juveniles After Roper V. Simmons, Tamar R. Birckhead

Washington and Lee Law Review

No abstract provided.

The Role Of The Parent/Guardian In Juvenile Custodial Interrogations: Friend Or Foe?, Hillary B. Farber

Faculty Publications

Part II briefly sets out the historical context of juvenile delinquency proceedings before and after the landmark U.S. Supreme Court case In re Gault. Part III discusses the two current approaches to assessing the validity of a juvenile's waiver. Part IV examines three inadequacies with the parent/guardian advisor: (1) the standardless approach with which courts assess their appropriateness; (2) the inadequacy with which adults understand Miranda; and (3) the conflicts of interest that arise in this context. Part V analogizes to the abortion and paternity contexts to support the argument that lawyers should act as primary advisors to …

The Logical Nexus Between The Decision To Deny Application Of The Third Geneva Convention To The Taliban And Al Qaeda And The Mistreatment Of Prisoners In Abu Ghraib, Evan J. Wallach

Case Western Reserve Journal of International Law

No abstract provided.

Improving The Kangaroo Courts: A Proposal For Reform In Evaluating Juveniles' Waiver Of Miranda, Kimberly Larson

Villanova Law Review

No abstract provided.

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 …

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 …

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 …

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.

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 …

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.

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 …

Living With Miranda: A Reply To Professor Grano, Martin H. Belsky

Akron Law Faculty Publications

Ten years ago, I wrote a review-Whither Miranda -of Liva Baker's book, Miranda: Crime, Law & Politics. In that article, I suggested that Miranda v. Arizona actually has had little impact on the day-to-day operations of the police or other investigative agencies. Interviews, questioning, and interrogations are conducted almost exactly as they had been before Miranda, except for the addition of warning cards in formal settings.

In addition, I argued Miranda's value as a legal precedent has been minimal. “Today, in almost all the cases involving admissions, the essential issue is voluntariness, the same issue stressed before Miranda. The only …

Living With Miranda: A Reply To Professor Grano, Martin H. Belsky

Martin H. Belsky

Ten years ago, I wrote a review-Whither Miranda -of Liva Baker's book, Miranda: Crime, Law & Politics. In that article, I suggested that Miranda v. Arizona actually has had little impact on the day-to-day operations of the police or other investigative agencies. Interviews, questioning, and interrogations are conducted almost exactly as they had been before Miranda, except for the addition of warning cards in formal settings.

In addition, I argued Miranda's value as a legal precedent has been minimal. “Today, in almost all the cases involving admissions, the essential issue is voluntariness, the same issue stressed before Miranda. The only …

Self Incrimination: People V. Tankleff

Touro Law Review

No abstract provided.

Cooper V. Dupnik: Civil Liability For Unconstitutional Interrogations, Julie E. Hawkins

Washington and Lee Law Review

No abstract provided.

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.

Right To Counsel

Touro Law Review

No abstract provided.

The Virtues Of Redundancy In Legal Thought, Randy E. Barnett

Cleveland State Law Review

Redundancy has a bad reputation among legal intellectuals. My interest in the virtues of redundancy grows out of my interest in the social function of the liberal conception of justice and the rule of law. In this essay, I propose that legal theorists pay serious attention to the concept of redundancy used by engineers. I explain how redundancy-in this special sense-is essential to any intellectual enterprise in which we try to reach action-guiding conclusions, including the enterprise of law. I will describe the virtues of redundancy in legal thought. I want to explain why it is useful to rely on …