Miranda's exceptions in a post-Dickerson world.

Author:Klein, Susan R.

Can the holding in Miranda v. Arizona, (1) as well as the numerous exceptions to its dictates, be adequately justified after the United States Supreme Court's latest pronouncement in Dickerson v. United States? (2) Chief Justice Warren in Miranda held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of a procedural safeguard effective to secure the privilege against self-incrimination." (3) While this holding appeared to enshrine the four warnings (4) into the Fifth Amendment itself, this interpretation was short-lived. Chief Justice Burger, in crafting an impeachment exception in Harris v. New York, (5) began a series of exceptions based upon the premise that a violation of Miranda does not necessarily violate the Constitution. (6) Conservative legal scholars responded to the deconstitutionalization of Miranda by suggesting that the Court had no authority, pursuant to Article III of the federal Constitution, to reverse state criminal convictions absent an actual constitutional violation. (7) A rogue Assistant United States Attorney and conservative law professor convinced the Fourth Circuit that a largely ignored statute Congress enacted in 1968 to overrule Miranda had done just that. (8) Finally, Chief Justice Rehnquist, in the terribly disappointing Dickerson case reversing the Fourth Circuit, opined that Miranda has "constitutional underpinning" (9) yet still permits exclusion of "statements which may be by no means involuntary" under Fifth Amendment and due process standards, (10) without attempting to explain this seeming contradiction or to assess the status of Miranda's exceptions. We are left with the same questions burning before Dickerson. If Miranda is required by the Fifth Amendment, how can we admit unwarned statements into evidence in a criminal trial even for impeachment? Conversely, if Miranda is not required by the Fifth Amendment, how can we reverse state court convictions for its violation?

Professor George Thomas and I, in a recent symposium issue of the Michigan Law Review, reach the same general conclusions regarding both the justification of Miranda (it can be satisfactorily explained), and the fate of the pre-Dickerson exceptions to Miranda (they healthily survive). However, we reach these conclusions by radically different routes: Professor Thomas utilizes the malleable Due Process Clause, (11) while I rely upon the flexibility of constitutional prophylactic rules. (12) While this difference may not seem striking when focusing solely upon the Miranda warnings, it is stark when attempting to justify the Warren Court revolution as a whole, and to account for many subsequent criminal procedure holdings. Pivotal decisions outlining procedures required to uphold Fourth, Fifth, Sixth, and Fourteenth Amendment guarantees can be properly and accurately characterized only as prophylactic rules rather than "true" constitutional edicts. (13) Reversing every one of these decisions or shoehorning every one of these rights into the Due Process Clause would be disastrous.

In this brief commentary, I will respond to Professor Thomas' thoughtful and creative but, in my opinion, ultimately unpersuasive attempt to relocate the Miranda warnings from the Fifth Amendment's Self-Incrimination Clause to the Fourteenth Amendment's Due Process Clause. As a descriptive matter, the Miranda warnings were designed to prevent compelled statements in violation of the Self-Incrimination Clause, not to protect due process values such as ensuring a fundamentally fair criminal trial, providing notice and an opportunity to be heard before the deprivation of a property or liberty interest, and preventing conscience shocking behavior by state actors. As a normative matter, principles of federalism and separation of powers militate strongly against an open-ended substantive or procedural due process monster. In Part I, I explain why, contrary to Professor Thomas' thesis, Miranda and its progeny do not fit comfortably (or at all, for that matter) in the Supreme Court's substantive due process, procedural due process, or administrative due process jurisprudence. Part II then clarifies why Professor Thomas' attempt to place Miranda in the Due Process Clause does not save its many exceptions.

None of my criticisms, however, detract from the key insight provided by Professor Thomas in his article--Miranda has been effectively transformed over the years from a case that all but mandated defense attorney participation in custodial interrogations to dispel inherent compulsion, to a case about providing the minimal amount of notice to a defendant about his privilege against self-incrimination such that a court can uphold his confession as voluntary. The decision, however, remains one concerned primarily with compulsion, and is concerned with notice only to the extent that notice dispels compulsion. Moreover, the answer to this unfortunate transformation is not to leave Miranda untouched and simply move it from the Self-Incrimination Clause to the Due Process Clause. The answer, instead, is to insist that the Supreme Court define what constitutes a "voluntary" confession, consider whether the Miranda warnings in fact make statements taken during custodial interrogation more or less "voluntary" than alternative procedures, and design rules to ensure that the Self-Incrimination Clause is protected in a manner the Court can enforce.


    Professor Thomas argues that Miranda is a case protecting three potential due process liberty interests: 1) the "liberty interest in not being subjected to custodial interrogation;" (14) 2) the liberty interest in making an "an informed choice whether to answer police questions;" (15) and 3) the liberty interest not to disclose what we wish to keep secret." (16) Thus, Miranda is about providing notice, not about prohibiting compulsion, and as such it reflects due process rather than self-incrimination values. Professor Thomas claims this interpretation provides a better description of Miranda and its progeny because it explains why waivers of Miranda are so easily found, (17) why non-Mirandized but clearly voluntary statements are nonetheless excluded, (18) and why sometimes the Miranda presumption of compulsion is applied and sometimes it isn't. (19)

    Neither of Professor Thomas' suggestions, to relocate the Miranda warnings in the Due Process Clause of the Fifth or Fourteenth Amendment, or, less radically, to retain its status as a protector of the Self-Incrimination Clause but utilize due process values to determine when to apply the prophylaxis, (20) are helpful. I disagree with Professor Thomas on three levels. First, I disagree with the need for shifting the Miranda warnings from the Fifth Amendment to the Due Process Clause in order to explain post-Miranda exceptions and Miranda's waiver doctrine. We are not limited to the three choices identified by Professor Thomas: 1) accepting Justice Scalia's reasoning that Miranda has been deconstitutionalized by later cases and therefore can be ignored entirely by the states; 2) reconstitutionalizing Miranda and overruling its exceptions; or 3) finding another constitutional home for Miranda. (21) As I have argued elsewhere, the Court could have retained the Miranda doctrine and its exceptions by properly labeling it a constitutional prophylactic rule, defining what that is, and detailing why a prophylactic rule was necessary to protect the privilege against self-incrimination. (22) My approach reaps the same advantage of flexibility of deciding when to apply the rule, what exceptions to create, and what form of waiver to require that Professor Thomas claims for his theory. Instead of a general and vague balancing of "fairness to the suspect on one side and the interest of the state in accurate fact-finding on the other," (23) the flexibility of a prophylactic rule consists of applying it only where the rule is necessary to fulfill its function. We should judge whether the prophylactic rule is effective in dispelling the compulsion inherent in custodial interrogation and in assisting the Court in adjudicating claims of a violation of the privilege against self-incrimination. We should consider the costs of lost confessions only to the extent that the prophylactic rule over-protects the privilege or fails to assist law enforcement and the courts in obeying and adjudicating the privilege. (24) Moreover, a significant advantage to my approach is that it allows Congress, state legislatures, and state and federal law enforcement departments to share in fashioning any prophylactic rules necessary to protect the privilege, though the final decision still rests with the Court. (25)

    My second level of disagreement with Professor Thomas' solution is that the Miranda decision does not fit comfortably, as either a normative or descriptive proposition, in the Due Process Clause. My final criticism is that moving Miranda to the Due Process Clause would not make post-Miranda cases coherent. I will start with the former claim. Before we can discuss whether Miranda can be redescribed as a due process case we must isolate what kind of due process Professor Thomas has in mind. The Court generally divides Fourteenth Amendment due process into three component parts. (26) First, it selectively incorporates specific provisions defined in the Bill of Rights. (27) Second, the Due Process Clause contains a substantive component that prevents the government from engaging in conduct that "shocks the conscience," (28) as or enacting legislation which interferes with rights "implicit in the concept of ordered liberty," (29) regardless of the fairness of the procedures used. Third, the Due Process Clause guarantees that government action depriving a person of life, liberty or property be implemented in a fair...

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