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A Rejoinder To Professor Schauer's Commentary, Yale Kamisar Jan 2013

A Rejoinder To Professor Schauer's Commentary, Yale Kamisar

Articles

It is quite a treat to have Professor Frederick Schauer comment on my Miranda article.1 Professor Schauer is a renowned authority on freedom of speech and the author of many thoughtful, probing articles in other areas as well, especially jurisprudence. I am pleased that in large measure, Schauer, too, laments the erosion of Miranda in the last four-and-a-half decades2 and that he, too, was unhappy with the pre-Miranda due process/“totality of circumstances”/“voluntariness” test.3 I also like what Schauer had to say about “prophylactic rules,” a term that has sometimes been used to disparage the Miranda rules.4 As Schauer observes, the …


On The Fortieth Anniversary Of The Miranda Case: Why We Needed It, How We Got It--And What Happened To It, Yale Kamisar Jan 2007

On The Fortieth Anniversary Of The Miranda Case: Why We Needed It, How We Got It--And What Happened To It, Yale Kamisar

Articles

Last year (the year I gave the talk on which this article is based) marked the fortieth anniversary of Miranda v. Arizona,' one of the most praised, most maligned-and probably one of the most misunderstood-Supreme Court cases in American history. It is difficult, if not impossible, to evaluate Miranda without looking back at the test for the admissibility of confessions that preceded it.


Miranda's Reprieve: How Rehnquist Spared The Landmark Confession Case, But Weakened Its Impact, Yale Kamisar Jan 2006

Miranda's Reprieve: How Rehnquist Spared The Landmark Confession Case, But Weakened Its Impact, Yale Kamisar

Articles

June marks the 40th anniversary of one of the most praised, most maligned-and probably one of the most misunderstood-U.S. Supreme Court cases in American history, Miranda v. Arizona. The opinion by Chief Justice Earl Warren conditions police questioning of people in custody on the giving of warnings about the right to remain silent, the right to counsel and the waiver of those rights. 384 U.S. 436. This ruling represents a compromise of sorts between the former elusive, ambiguous and subjective voluntariness/totality-of-the-circumstances test and extreme proposals that would have eliminated police interrogation altogether. But William H. Rehnquist didn't see Miranda that …


Postscript: Another Look At Patane And Seibert, The 2004 Miranda 'Poisoned Fruit' Cases, Yale Kamisar Jan 2004

Postscript: Another Look At Patane And Seibert, The 2004 Miranda 'Poisoned Fruit' Cases, Yale Kamisar

Articles

Some months after I finished writing an article that, inter alia, discussed the lower court opinions in Patane and Seibert (an article that appears elsewhere in this issue of the Journa),1 the Supreme Court handed down its decisions in those cases.2 In Patane, a 5-4 majority held admissible a Glock pistol located as a result of a failure to comply with Miranda. In Seibert, a 5-4 majority agreed with the state court that a "second confession," one obtained after the police had deliberately used a two-stage interrogation technique designed to undermine the Miranda warnings, was inadmissible. 3 In Patane, Justice …


From Miranda To §3501 To Dickerson To...(Symposium: Miranda After Dickerson: The Future Of Confession Law), Yale Kamisar Jan 2001

From Miranda To §3501 To Dickerson To...(Symposium: Miranda After Dickerson: The Future Of Confession Law), Yale Kamisar

Articles

Once the Court granted [certiorari in Dickerson] court-watchers knew the hour had come. At long last the Court would have to either repudiate Miranda, repudiate the prophylactic-rule cases [the cases viewing Miranda's requirements as not rights protected by the Constitution, but merely "prophylactic rules"] or offer some ingenious reconciliation of the two lines of precedent. The Supreme Court of the United States, however, doesn't "have to" do anything, as the decision in Dickerson once again reminds us.


Congress' Arrogance, Yale Kamisar Jan 2000

Congress' Arrogance, Yale Kamisar

Articles

Does Dickerson v. U.S., reaffirming Miranda and striking down §3501 (the federal statute purporting to "overrule" Miranda), demonstrate judicial arrogance? Or does the legislative history of §3501 demonstrate the arrogance of Congress? Shortly after Dickerson v. U.S. reaffirmed Miranda and invalidated §3501, a number of Supreme Court watchers criticized the Court for its "judicial arrogance" in peremptorily rejecting Congress' test for the admissibility of confessions. The test, pointed out the critics, had been adopted by extensive hearings and debate about Miranda's adverse impact on law enforcement. The Dickerson Court did not discuss the legislative history of §3501 at all. However, …


The Three Threats To Miranda, Yale Kamisar Jan 1999

The Three Threats To Miranda, Yale Kamisar

Articles

Miranda v. Arizona (1966) was the centerpiece of the Warren Court's "revolution" in American criminal procedure. Moreover, as Professor Stephen Schulhofer of the University of Chicago Law School has recently noted, a numbir of the Miranda safeguards "have now become entrenched in the interrogation procedures of many countries around the world." But Miranda is in serious trouble at home.


Rewriting Roe V. Wade, Donald H. Regan Aug 1979

Rewriting Roe V. Wade, Donald H. Regan

Articles

Roe v. Wade is one of the most controversial cases the Supreme Court has decided. The result in the case - the establishment of a constitutional right to abortion - was controversial enough. Beyond that, even people who approve of the result have been dissatisfied with the Court's opinion. Others before me have attempted to explain how a better opinion could have been written. It seems to me, however, that the most promising argument in support of the result of Roe has not yet been made. This essay contains my suggestions for "rewriting" Roe v. Wade


Brewer V. Williams, Massiah And Miranda: What Is 'Interrogation'? When Does It Matter?, Yale Kamisar Jan 1978

Brewer V. Williams, Massiah And Miranda: What Is 'Interrogation'? When Does It Matter?, Yale Kamisar

Articles

On Christmas Eve, 1968, a ten-year-old girl, Pamela Powers, disappeared while with her family in Des Moines, Iowa.2 Defendant Williams, an escapee from a mental institution and a deeply religious person, 3 was suspected of murdering her, and a warrant was issued for his arrest.4 Williams telephoned a Des Moines lawyer, McKnight, and on his advice surrendered himself to the Davenport, Iowa, police.5 Captain Learning and another Des Moines police officer arranged to drive the 160 miles to Davenport, pick up Williams, and return him directly to Des Moines. 6 Both the trial court 7 and the federal district court8 …


Foreword: Brewer V. Williams--A Hard Look At A Discomfiting Record, Yale Kamisar Jan 1977

Foreword: Brewer V. Williams--A Hard Look At A Discomfiting Record, Yale Kamisar

Articles

In recent decades, few matters have split the Supreme Court, troubled the legal profession, and agitated the public as much as the police interrogation-confession cases. The recent case of Brewer v. Williams3 is as provocative as any, because the Supreme Court there revdrsed the defendant's conviction for the "savage murder of a small child" even though no Justice denied his guilt,4 he was warned of his rights no fewer than five times, 5 and any "interrogation" that might have occurred seemed quite mild.6


Kauper's 'Judicial Examination Of The Accused' Forty Years Later—Some Comments On A Remarkable Article, Yale Kamisar Nov 1974

Kauper's 'Judicial Examination Of The Accused' Forty Years Later—Some Comments On A Remarkable Article, Yale Kamisar

Articles

For a long time before Professor Paul Kauper wrote "Judicial Examination of the Accused" in 1932, and for a long time thereafter, the "legal mind" shut out the de facto inquisitorial system that characterized American criminal procedure. Paul Kauper could not look away. He recognized the "naked, ugly facts" (p. 1224) and was determined to do something about them -more than thirty years before Escobedo v. Illinois' or Miranda v. Arizona.2


The Citizen On Trial: The New Confession Rules, Yale Kamisar Jan 1967

The Citizen On Trial: The New Confession Rules, Yale Kamisar

Articles

Commenting on why it has taken the United States so long to apply "the privilege against self-incrimination and the right to counsel to the proceedings in the stationhouse as well as to those in the courtroom" - as the Supreme Court did in Miranda v. Arizona - this author notes that, "To a large extent this is so because here, as elsewhere, there has been a wide gap between the principles to which we aspire and the practices we actually employ."


A Dissent From The Miranda Dissents: Some Comments On The 'New' Fifth Amendment And The Old 'Voluntariness' Test, Yale Kamisar Jan 1966

A Dissent From The Miranda Dissents: Some Comments On The 'New' Fifth Amendment And The Old 'Voluntariness' Test, Yale Kamisar

Articles

F the several conferences and workshops (and many lunch conversations) on police interrogation and confessions in which I have participated this past summer3 are any indication, Miranda v. Arizona' has evoked much anger and spread much sorrow among judges, lawyers and professors. In the months and years ahead, such reaction is likely to be translated into microscopic analyses and relentless, probing criticism of the majority opinion. During this period of agonizing appraisal and reappraisal, I think it important that various assumptions and assertions in the dissenting opinions do not escape attention.