Article I, 1018 UTBJ, Vol. 31, No. 5. 22

AuthorAmos N. Guiora
PositionVol. 31 5 Pg. 22

Article I

Vol. 31 No. 5 Pg. 22

Utah Bar Journal

October, 2018

September 2018

Miranda v. Arizona: Pain Management: Protecting the Vulnerable

Amos N. Guiora

Interrogations reflect an imbalance between the interrogator and suspect, a nitty-gritty confluence of fear, anxiety, and control.

My "counter-point" to Professor Cassell's thoughtful and well argued "point" reflecting path-breaking empirical research that has drawn, justifiably, wide commentary, focuses on interrogations from the suspect's perspective. That is in accordance with the essence of the holding in Miranda v. Arizona.

Chief Justice Earl Warren emphasized the vulnerability of the individual in the inherently coercive environment of an interrogation. For Warren, as for me, the power, importance, and centrality of Miranda is the focus on protecting the constitutional rights of the vulnerable individual. That is the theme of this counterpoint; I believe this approach most accurately represents what J Warren believed and wrote in as clear a language as possible. Warren's holding guaranteed the protection of a right guaranteed in the Constitution to an individual.

Any proposed weakening of Miranda, beyond the Quarks exception, would represent unwarranted evisceration; while body cams or any other technological tools are doubtlessly valuable, they must not come in the place of the interrogator's clear articulation to the suspect of his/her Miranda rights.

I am of the opinion that these words are amongst the most important ever penned in a Supreme Court decision. As simple as they are, they are majestic. You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?


To solve a crime, the interrogator needs information. The essence of police work is gathering information, collecting evidence, connecting various dots, and then determining who is responsible for violating the law. There is nothing magical about this. While contemporary methods are more sophisticated, more scientifically based and, hopefully, more objective than in years past, the critical interaction is between the two individuals.

As Earl Warren fully understood, that relationship is at the epicenter of criminal law and procedure. The interrogator wants the truth. That is the purest form of law enforcement in the ideal. What Warren feared was an interrogator who wants a confession and for the suspect to incriminate himself or herself and say, "I did it" regardless of the truth. That is an interrogator who coerces a confession from the suspect.

If there is one word that captures the interrogation paradigm it is "coercive." While the environment is not intended to resemble comfort and leisure, the question is to what degree does the suspect have to be coerced before confessing. The environment - in its totality - is coercive. Coercion is inherent to interrogation. The physicality is obvious and telling. The suspect is handcuffed. The suspect is accused of having committed a crime.

Miranda v. Arizona

Chief Justice Earl Warren sought to protect the...

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