Miranda and reasonableness.

• Author: Rutledge, Peter B.

Last term's decisions in Yarborough v. Alvarado (1) and Missouri v. Seibert (2) shed important light on the state of the Miranda doctrine in the Supreme Court. In Yarborough, a slim majority held that a state appellate court's failure to consider a defendant's age and history of contact with law enforcement in its "custody" determination was not "contrary to" or an "unreasonable application of' clearly established Supreme Court case law. (3) In Seibert, a fractured majority affirmed the Missouri Supreme Court's decision to exclude a defendant's confession where police officers strategically withheld a suspect's Miranda rights at the outset of a custodial interrogation and only gave the warnings after obtaining a complete confession. (4)

On first impression, both decisions appear quite unrelated. Consider the precise issues before the Court: Yarborough concerned the definition of "custody"; Seibert addressed the proper remedy when police have not honored Miranda's command that the warnings precede any custodial interrogation. Consider too their procedural postures: Yarborough concerned review of a federal appellate court decision on a habeas petition challenging a state conviction; Seibert involved direct review of a state Supreme Court decision.

Studied more closely, the two cases share an important common thread. Both concerned whether an actor's "subjective" understanding was relevant to the doctrinal inquiry or, instead, whether the inquiry should be guided by purely "objective" factors. In Yarborough, the Court revisited its definition of custody--whether "a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave" (5)--and appeared to hold that a defendant's peculiar characteristics were not relevant to the "reasonableness determination." (6) In Seibert, the justices divided over whether the availability of the exclusionary remedy following delayed administration of the warnings turned on the objective unreasonableness of the officer's conduct or on evidence of deliberate misconduct by police. (7)

Seen at this level, Yarborough and Seibert carry broader implications about the Court's willingness (or reluctance) to rely on subjective or objective tests to shape the formation of the Miranda doctrine specifically and "reasonableness" doctrines more generally. To be sure, the Court has not charted an entirely consistent path on these matters, and these most recent decisions confirm the Court's unpredictability. Nonetheless, one can draw both positive lessons about how the Court confronts reasonableness determinations and normative lessons about how it should do so.

This Essay explores these lessons in three parts. Part I traces some of the traditional arguments for and against subjective and objective standards of reasonableness, drawing on debates in other contexts where those issues have arisen. Part II reviews the facts and various opinions of Yarborough and Seibert and then evaluates the opinions in light of these traditional arguments. Part III elevates the critique to a normative level and offers guidance on how the Court should address these doctrinal issues in the future.

In the interest of brevity, I subject this Essay to two important simplifying assumptions. First, the Essay does not take a position in the debate over the legitimacy of Miranda--either as a matter of constitutional doctrine or as a matter of policy. (8) I take Miranda doctrine as I find it and simply trace out its logical implications. Second, the Essay assumes that Miranda doctrine should be developed in light of its underlying purposes: to counteract the inherently compelling nature of the custodial interrogation and reduce the risk that an involuntary confession will be admitted at trial through the use of its presumptions, prophylactic rules and exclusionary principles. (9)

1. REASONABLENESS: A REDUX

   Both Yarborough and Seibert involved debates over the extent to which subjective, as opposed to purely objective, factors should inform various reasonableness determinations in Miranda case law. Such debates are of course not new to legal doctrine generally or to Miranda law specifically. (10) The meaning of "reasonableness" plays a critical role in the development of negligence and causation doctrine in tort law. In criminal law, reasonableness determinations inform a variety of doctrines--culpability for negligent homicide (and other negligence-based crimes), the availability of a provocation partial-defense (or extreme mental and emotion disturbance under the Model Penal Code) and various justifications such as self-defense, defense of others and defense of property. (11) Likewise, various determinations in criminal procedure case law turn on a reasonableness determination such as the definition of a seizure, the definition of a search, the scope of the good faith exception, the justification for a Terry stop and the scope of consent. (12)

   Two features distinguish reasonableness determinations in most criminal procedure contexts, including the Fifth Amendment, from reasonableness determinations in tort or criminal law. First, reasonableness determinations in contexts such as negligence law and self-defense typically serve as liability-defining rules. In other words, the reasonableness finding will determine, at least partly, whether a particular individual will be civilly or criminally liable for his conduct. By contrast, in the Miranda context, as in many other criminal procedure contexts, reasonableness determinations usually do not serve as liability-defining rules but instead simply operate within a larger framework of evidentiary rules. For example, if "reasonable suspicion" did not support the stop, then the Fourth Amendment was violated and the evidence seized during the frisk must be suppressed. (13) Second, in the garden-variety tort or criminal law context, the jury plays a prominent role in making reasonableness determinations. (14) By contrast, in the Miranda context (as in many other criminal procedure contexts), the judge typically makes the reasonableness determination--for example, in a suppression hearing as part of a ruling on the admissibility of evidence.

   As is well known to students of the "reasonableness" debate, "subjective" has a single, relatively clear meaning while "objective" has two, potentially quite different, meanings. Subjective generally means taking into account the personal beliefs of the relevant individual. Objective, in contrast, can mean complete separation from an actor's particular circumstances. (This is the "broad exclusionary" definition of objective.) Other times, objective simply means irrespective of what the actor actually believed. (This is the "narrow exclusionary" definition of objective.)

   To illustrate the difference between the broad and narrow exclusionary definitions, it is helpful to consider how the different meanings of objective would affect another doctrinal area, such as self-defense law. A jury applying the broad exclusionary definition to a self-defense claim would evaluate only whether a reasonable person would have believed self-defense was necessary; it would not ask whether a reasonable person with particular characteristics of the defendant would believe that self-defense was necessary. By contrast, a jury applying the narrow exclusionary definition would consider factors such as the age, strength, or capacity of an actor, but it would not consider whether the actor actually believed that self-defense was necessary. Thus, depending on the precise definition of objective, different characteristics can be excluded from the analysis.

   Relatively little has been written about these issues in the Miranda context. Nonetheless, because broader debates over reasonableness (and its relevant criteria) are nothing new, a ripe literature supplies a thoughtful backdrop for evaluating these issues as applied to Miranda. (15) That literature reflects a variety of perspectives and underlying theories. Ultimately, most debates over the proper referent for reasonableness determinations boil down to three factors: (1) administrability, (2) individual rights, and (3) balancing the interests of law enforcement and the private citizen.

   1. Administrability

      The first factor, administrability, may be understood in three non-exclusive senses. First, administrability may be understood in terms of how easy a rule is to administer in a given case. In other words, if a rule dictates "If X, then B," its ease of administrability will depend critically on how easy it is for the decision maker to determine whether proposition X is in fact valid. Second, and relatedly, administrability also may be understood in terms of how easily a particular rule can be applied across cases. This second aspect of administrability has particular importance in common law systems that depend on analogy to prior decisions to inform the proper legal result. In other words, taking our prior rule again "If X, then B," a decision maker confronted with whether X is a valid proposition will not simply look at the facts of a particular case in isolation. Rather, the decision maker will consider (some might say is bound to consider) how other tribunals (at least superior ones in the decision maker's jurisdiction) have ascertained the validity of X in prior cases. Third, administrability may be understood in terms of its ease of application by police. Does the rule provide clear guidance to police who must apply it while making split-second judgments in the field?

      Administrability (in all three senses) is typically one of the strongest arguments offered in defense of objective measures of reasonableness. (16) On the first aspect of administrability, defenders of objective tests typically point to the unworkability of subjective measures. (17) How can one determine the state of mind of the defendant? Of the police officer? Explicitly defining reasonableness by...