Constitutional theory for criminal procedure: Dickerson, Miranda, and the continuing quest for broad-but-shallow.

• Jurisdiction: United States
• Date: 01 October 2001
• Author: Dripps, Donald A.
• Published date: 01 October 2001
• Author: Dripps, Donald A.

The very first paragraph of the Supreme Court's much-awaited decision in Dickerson v. United States (1) declares that Miranda v. Arizona, (2)

being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress, and we decline to overrule Miranda ourselves. We therefore hold that Miranda and its progeny in this Court govern the admissibility of statements made during custodial interrogation in both state and federal courts. (3) One might suppose that such a simple reaffirmation of the status quo would call for little scholarly comment. In the context of constitutional criminal procedure in general, and of Miranda in particular, however, there is nothing simple about reaffirming the status quo.

For a quarter of a century, some of the Court's cases have characterized Miranda's requirements as "not themselves rights protected by the Constitution" but instead as "measures to insure that the right against compulsory self-incrimination [is] protected." (4) More succinctly, Miranda was described as a mere "prophylactic rule." (5) The Fourth Circuit had concluded that, given this characterization of Miranda as prophylactic rather than constitutional, Title II of the 1968 Omnibus Crime Control and Safe Streets Act (6) (a congressional statute purporting to return to the pre-Miranda voluntariness test)was constitutional. (7) Complying with the statute, the court of appeals ruled that the district court should have admitted a statement obtained in violation of the Miranda rules. (8) The Supreme Court's Dickerson opinion rejected the Fourth Circuit's conclusion that Miranda was not a constitutional decision. (9) But the opinion did not repudiate prior cases admitting evidence derived from Miranda violations or allowing impeachment with Miranda-tainted statements, cases that were justified in large measure by the prophylactic-rules characterization.

Miranda's academic defenders had hoped that if the majority refused to overrule Miranda, the opinion might have restored the Warren Court's "original vision" of Miranda as a constitutional antidote to the per se compulsion attending custodial interrogation. (10) After Dickerson Miranda seems securely established in the constitutional order; the Court reaffirmed present law. But present law is itself unstable.

To take an example, in prior cases the Court has upheld the use of Miranda-tainted statements to impeach the testimony of defendants who elect to testify in their own defense. (11) Part of the justification for this impeachment exception was the theory that Miranda announced prophylactic safeguards rather than constitutionally required safeguards. (12) In contrast, when a defendant testifies after giving clearly compelled testimony before a grand jury under an immunity order, the Court has refused to permit impeachment with the compelled testimony. (13) Thus if Dickerson takes the stand at his trial on remand, he can be impeached with the very statement that the Court has just suppressed on the ground that the interrogation violated a "constitutional rule" derived from the Fifth Amendment. In effect, the same statement might be deemed compelled and not compelled in the same case.

The Justices are aware of their own precedents. The fact that Chief Justice Rehnquist, for decades an implacable critic of Miranda, (14) wrote the majority opinion, is more than one of those rich ironies with which our constitutional history abounds. It is also a sure sign of a compromise opinion, intentionally written to say less rather than more, for the sake of achieving a strong majority on the narrow question of Miranda's continued vitality.

Dickerson therefore qualifies as a "minimalist' opinion of the sort recently defended by Professor Cass Sunstein. (15) With many qualifications, Sunstein makes the case for judicial decisions that announce narrow rather than broad rules for the future, justified by particular considerations in the case at hand rather than by appeals to first principles or comprehensive general theories. (16) More succinctly, judicial opinions should minimize the width of the rules they announce, as well as the depth of the reasons they give. (17)

This description fits Dickerson exactly. Yet Professor Sunstein himself identifies Miranda as a case in which a wide rule might very well be justified. (18) Minimalism's virtues depend on the context. In this Article, I adopt Sunstein's distinction between minimalist and maximalist opinions--measured on the axes of width and depth--to analyze Miranda, Dickerson and criminal procedure doctrine more generally. The Article argues that, because of the volume of constitutional litigation in criminal cases and because of the demonstrable failure of legislatures to deal constructively with criminal procedure problems, width is a virtue rather than a vice in constitutional criminal procedure.

But width has a problem in criminal procedure. If a Supreme Court majority supports a wide ruling with a fully theorized opinion, such a deep justification will be intensely controversial. Rarely will a deep justification persuade a majority, and over time deep justifications that do win majority support are likely to lose it. At that point the rule may remain highly desirable from a policy standpoint but illegitimate from the standpoint of constitutional law. On the other hand, if a wide rule is maintained by a majority that does not accept a fully theorized account, the application of the rule in future cases will be arbitrary. Justices who adhere to a particular rule solely because some rule is required have no guide to interpreting the rule beyond maintaining its categorical form. Thus criminal procedure calls for wide rulings, but these may very well suffer from a legitimacy deficit and evoke subsequent inconsistent applications. Given the case for wide rules in criminal procedure cases, however, a return to case-by-case adjudication is highly unattractive. What criminal procedure needs is a legitimate doctrinal basis for broad rulings. Ideally, such a basis would command normative respect from various ideological perspectives, which would reduce both collective decision problems in future cases and the risk of hostile political reaction of the sort exemplified by Title II. What we are looking for, in other words, is a shallow justification for wide rules.

This Article concludes by suggesting two such possibilities. First, if the Justices adopted a more scrupulous approach to stare decisis in criminal procedure cases, wide rules, once announced, might be sustainable even after their deep justifications have lost majority support. By scrupulous stare decisis I mean two distinct attitudes. The first is a willingness on the part of individual Justices not just to adhere to the narrow holdings of past cases, but also to accept their justifications, or devise and articulate a convincing alternative justification for them. The second is a readiness on the part of Supreme Court majorities to overrule outlying precedents. Although apparently in tension with one another, these two attitudes actually reflect both a common concern for pragmatic criminal procedure doctrine and a common recognition that the Court, not its constituent Justices, is the final authority on constitutional interpretation.

A second strategy proposes grounding criminal procedure rules in more general textual bases, such as the Fourth Amendment's reasonableness clause or the requirement of procedural fairness expressed by the due process clauses. The familiar procedural due process standard of Mathews v. Eldridge, (19) premised on instrumental reliability, supplies the doctrinal predicate for wide rules of minimally acceptable procedures in administrative entitlement cases. (20) Substantive due process, in the blandest and least controversial form, requires that deprivations of liberty be reasonable exercises of the police power. The Fourth Amendment cases have given that formulation somewhat more precision: restraints on liberty and invasions of privacy must be proportioned to the probability that crime will thereby be detected or prevented. Normatively these principles command very wide respect across a variety of ideological perspectives. So far as I know, no one favors unreliable procedures, or unreasonable restraints on liberty.

Yet in modern criminal cases, the Court has purported to limit due process inquiry so as to confine, for practical purposes, criminal procedure doctrine to the specific provisions in the Bill of Rights. If my argument is correct, this turn is likely to perpetuate criminal procedure's current problems. The need to guide law enforcement agencies and lower courts in millions of future cases will push the Court in the direction of announcing bright-line rules, which can be tethered to the Bill of Rights only by intensely controversial doctrinal moves. Subsequent decisions by majorities that do not subscribe to the deep reasoning of prior cases will foster inconsistency and uncertainty in the law. Ingenious legalisms and the vigorous pruning of outlying precedents may palliate the situation, but in the end, doctrine and values must be brought into line with one another. If forced to choose between unstable rules very loosely based on the Bill of Rights, and stable rules firmly based on a constitutional commitment to fair trials and reasonable police practices, the balance of considerations inclines in favor of the latter.

If the choice between those alternatives is a close one, the choice between any likely set of broad rules and a regime of case-by-case adjudication is somewhat easier. The very factors that Professor Sunstein considers supportive of minimalism generally support wide rules in the criminal procedure context. It turns out that one's general approach to constitutional law--one's constitutional theory--may vary, without inconsistency, from one set of cases to another. Somewhat ironically then, a...