Separated at birth but siblings nonetheless: Miranda and the due process notice cases.

• Author: Thomas, George C., III

Paraphrasing Justice Holmes, law is less about logic than experience.(1) Courts and scholars have now had thirty-four years of experience with Miranda v. Arizona,(2) including the Court's recent endorsement in Dickerson v. United States(3) last Term. Looking back over this experience, it is plain that the Court has created a Miranda doctrine quite different from what it has said it was creating. I think the analytic structure in Dickerson supports this rethinking of Miranda. To connect the dots, I offer a new explanation for Miranda that permits us to reconcile Dickerson and the rest of the post-Miranda doctrine with the underlying theme of the Miranda opinion.

Consider two Miranda experiences that seem quite contradictory. The first experience draws upon my teaching of Miranda in my classes at Rutgers. Among my students, Miranda critics are as rare as the honest lawyers whom Diogenes sought.(4) I can find the loyal opposition on just about every other issue, but not, oddly enough, on Miranda. I try deploying the "plain meaning" argument, forcing the students to read the actual words in the Constitution: "nor shall any person be compelled in a criminal case to be a witness against himself."(5) It is clear that the Framers had in mind courtroom testimony. Moreover, I ask, how can we say that a suspect is compelled to be a witness against himself if he answers "I shot my wife" to the officer's first question of "what happened last night?" Where is the compulsion? Despite my efforts, even the conservative students think it is unfair for police to question suspects without telling them that they need not answer.(6)

The second experience I offer is that of reading hundreds of appellate opinions deciding whether the police complied with Miranda. If you have read a few, you will not be surprised at my basic finding -- once the prosecutor proves that the warnings were given in a language that the suspect understands, courts find waiver in almost every case. Miranda waiver is extraordinarily easy to show -- basically that the suspect answered police questions after saying that he understood the warnings.(7) This waiver process bears little resemblance to waiver of the Fifth Amendment privilege at trial where the prosecutor is not permitted to badger the defendant with requests that he take the witness stand. Indeed, neither the prosecutor nor the judge can even comment on the failure of the defendant to testify.(8) As most defendants are represented by counsel at trial, the decision to take the stand, and waive the privilege, almost always is made after advice and careful thought.(9) By contrast, the Miranda version of the Fifth Amendment permits waiver to be made carelessly, inattentively, and without counsel.(10)

These experiences suggest that almost everyone thinks fairness requires telling suspects that they do not have to answer police questions, but courts find waiver of the right not to answer on any evidence that the suspect understood the warnings. Is this really an application of the venerable privilege not to be compelled to take the witness stand at trial? More is going on here than meets the eye.

It is good that law does not depend completely on logic. Judged on that score, Miranda remains quite mysterious. I wish to identify some of these mysteries and offer a new way of thinking about Miranda that may explain some of the puzzles. Whatever the Miranda majority contemplated, my thesis is that later, and somewhat hostile, Courts have transformed Miranda from a case about the Fifth Amendment privilege against self incrimination to one about due process.

In Part I of this Article, by way of background, I outline some of the mysteries left open by the Court's Miranda decision and later jurisprudence. In Part II, I explore the theoretical and practical disjunction between Miranda and the Fifth Amendment privilege. Part III then draws on the conceptual and historical bases of due process to show how a due process understanding may provide answers to some of Miranda's mysteries. Part IV demonstrates how the Miranda doctrine and subsequent case law is better explained under a due process notice theory than under any version of the Fifth Amendment privilege theory. Part V offers some tentative thoughts about how best to justify a Miranda requirement in the Due Process Clause. In Part VI, I offer some brief comments on Susan Klein's alternative theory for Miranda. Finally, I conclude that "truth-in-labeling" -- the importance of which is emphasized by Professor Klein -- requires that due process theory takes its rightful place in explaining Miranda and its progeny.

1. MIRANDA'S MYSTERIES: AN OVERVIEW OF THE ARGUMENT

   The most basic mystery of Miranda is identifying the full extent of the holding itself. As Stephen Schulhofer points out,(11) there are actually three holdings. The Court held, first, that the Fifth Amendment privilege against compelled self-incrimination applies to custodial police interrogation. Second, the Court held that the pressure of custodial interrogation is inherently compelling for purposes of the Fifth Amendment. As to the third holding, the opinion is less than clear. Professor Schulhofer argues that the Court held that every response to custodial interrogation is compelled unless warnings are given.(12)

   Perhaps this is true, although the third holding does not necessarily follow from the second. It might be that some suspects who answer in the face of compelling pressure are not actually compelled to answer. This might be so for three reasons. First, humans surely have different tolerances for how well they can withstand compelling pressures. Second, the inherently compelling pressure of police interrogation comes in quite different levels of pressure. The question "what happened last night?" might be inherently compelling but it is of a different order of magnitude from the forty hours of interrogation, thirty of it with no break, that the defendant faced in Lisenba v. California.(13)

   Third, humans who answer police questions might have independent motives to answer, motives that have nothing to do with police compulsion as it is traditionally understood. In Lisenba, for example, the suspect did not confess until confronted with a confession of his confederate; Lisenba said that he would never have confessed but for the statement of the confederate.(14) While the police disclosure of the confederate's confession motivated Lisenba's confession, courts have never found that providing truthful information to a suspect is compulsion. The distinction is between enabling the will of the suspect to operate with more information, which is not compulsion, and overbearing the will of the suspect. Like all distinctions in confession law, this one can be spun to gossamer fineness, but in Lisenba, the Court found that the suspect

   exhibited a self-possession, a coolness, and an acumen throughout his questioning, and at his trial, which negatives the view that he had so lost his freedom of action that the statements made were not his but were the result of the deprivation of his free choice to admit, to deny, or to refuse to answer.(15) If it is possible to imagine a noncompelled response to inherently compelling police pressure (and the Court has on several occasions insisted that this is more than just an imaginary possibility),(16) then the narrow holding in Miranda is less than clear. Did the Court hold that every response is compelled unless accompanied by warnings and waiver or only that warnings and waiver are required because of the great risk that any given response will be compelled? Justice White, in his Miranda dissent, noted both of these formulations of the potential holding, ultimately deciding on the former -- that Miranda held "any answers to any interrogation to be compelled regardless of the content and course of examination."(17)

   If the Court held that every statement made by suspects in response to police interrogation is compelled under the authority of the Fifth Amendment, this conclusive presumption would presumably apply in all situations just like a finding of "real" Fifth Amendment compulsion. This is the "strong" reading of Miranda's relationship to the Fifth Amendment. The conclusive presumption makes it easier to decide when the constitutional provision has been violated, and nothing about the presumption suggests that a presumed violation is somehow less wrongful, or deserves a lesser remedy, than a "real" violation.

   This introduces another Miranda mystery. The Court chooses sometimes not to apply the Miranda presumption of compulsion even though "actual" compulsion would produce an outcome in favor of the defendant. In these contexts, the Court insists that the defendant loses unless he can demonstrate "real" compulsion. Consider New York v. Quarles,(18) where the Court held that Miranda warnings are not required when the police are asking questions designed to advance public safety. A statement ("the gun is over there") is therefore admissible even though no warnings are given and Miranda's conclusive presumption would otherwise be fully engaged. Although the Court withdrew the prophylactic protection from this category of cases, it did not withdraw the pre-Miranda protection against involuntary, compelled, or coerced statements.(19) Thus, the Court assured the reader that the suspect who loses the benefit of Miranda's conclusive presumption, including Quarles himself on remand, can argue that his statement was "actually compelled by police conduct that overcame [his] will to resist.(20)

   As Quarles makes clear, the Court has over the years adopted the less expansive, or "weak" reading of Miranda's holding -- not that every statement is compelled but that the warnings are necessary because the risk of compulsion is so great. If the warnings are not given, the presumption of compulsion will usually, but not always, require suppression of statements made in...