THE RISE, DECLINE, AND FALL (?) OF MIRANDA
Yale Kamisar(fn*)
I. WHY DID THE WARREN COURT BELIEVE SOMETHING LIKE MIRANDA WAS NEEDED?...............................................967
II. CONFUSION OVER, AND RESISTANCE TO, MIRANDA......970
III. THE POLITICIANS GET INTO THE ACT................................972
IV. PRESIDENT NIXON NOMINATES WARREN BURGER
TO BE CHIEF JUSTICE..............................................................975
V. PRESIDENT NIXON NOMINATES WILLIAM REHNQUIST TO BE ASSOCIATE JUSTICE............................978
VI. CHIEF JUSTICE BURGER AND JUSTICE REHNQUIST ADMINISTER THE FIRST BLOWS TO MIRANDA: THE HARRIS AND TUCKER CASES..................................................980
A. Harris v. New York ...............................................................980
B. Michigan v. Tucker..............................................................984
VII. "PROPHYLACTIC RULES" VS. CONSTITUTIONAL RULES..........................................................................................991
VIII. THE COURTWEAKENS THE EDWARDS RULE...................995
IX. THE COURT DISPARAGES MIRANDA: QUARLES AND ELSTAD........................................................................................997
X. WHAT WAS THE MIRANDA COURT TRYING TO DO?......1000
XL THE STRANGE CASE OF DICKERSON V. UNITED STATES ....................................................................................... 1002
XII. BERGHUIS V. THOMPKINS THE COURT INFLICTS A HEAVY BLOW ON MIRANDA................................................. 1008
A. Must the Police Obtain a Waiver of Rights Before Interrogation Commences?................................................1011
B. The Implications of Miranda's Concern About the "Compelling Atmosphere" of Police Interrogation............1014
C. What Likely Takes Place in the Interrogation Room?.......1015
D. "Waiver by Confession"....................................................1018
XIII. ALTERNATIVES TO MIRANDA............................................ 1021
A. Should We Provide Custodial Suspects More Protection than Miranda Does (or Ever Did)?.................................... 1022
B. Should We Give Up on Miranda and Reinvigorate the Old Due Process/'Totality of the Circumstances'V'Voluntariness" Test?..............................1024
C. Is the Best Solution Interrogation by, or in the Presence of, a Magistrate or Other Judicial Officer?........................1032
A. FINAL REFLECTION................................................................... 1038
There has been a good deal of talk lately to the effect that Miranda(fn1) is dead or dying-or might as well be dead.(fn2) Even liberals have indicated that the death of Miranda might not be a bad thing.(fn3)
This brings to mind a saying by G.K. Chesterton: "Don't ever take a fence down until you know the reason why it was put up."(fn4)
I. WHY DID THE WARREN COURT BELIEVE SOMETHING LIKE MIRANDA WAS NEEDED?
Why was the "Miranda fence" erected? Because the "fence" it replaced-the due process/"totality of circumstances'V'voluntariness" test-proved to be "an inadequate barrier when custodial interrogation was at stake."(fn5) As the "voluntariness" test evolved, the terms typically used in administering it (e.g., "voluntariness," "coercion," "breaking" or "overbearing" the will) became increasingly unhelpful. They did not focus directly on either of the two grounds for excluding confessions: (a) their untrustworthiness or (b) disapproval of the methods used by the police in obtaining them.(fn6)
Nor is that all. As Stephen Schulhofer has observed, because of its sponginess and "subtle mixture of factual and legal elements,"(fn7) the pre-Miranda test "virtually invited" trial judges to "give weight to their subjective preferences" and "discouraged active review even by the most conscientious appellate judges."(fn8)
"Given the Court's inability to articulate a clear and predictable definition of 'voluntariness,' the apparent persistence of state courts in utilizing the ambiguity of the concept to validate confessions of doubtful constitutionality, and the resultant burden on [the Court's] own workload,"(fn9) it is hardly surprising that in 1966 what might be called the "voluntariness fence" was finally torn down in favor of a new one.
If a picture is worth a thousand words, perhaps the same can be said for a specific case and its graphic details. I am not going to return to the 1930s and 40s, when police interrogators sometimes resorted to the whip or the rope. I am only going to recall a case decided in the late 1970s- Mincey v. Arizona(fn10)
As I shall discuss shortly, the first blow the post-Warren Court dealt Miranda was in 1971. That year the Burger Court told us that even though statements obtained in violation of Miranda could not be used in the prosecution's case-in-chief, they could still be used to impeach the defendant's credibility if he testified on his own behalf(fn11) However, the prosecution could not use the defendant's statements for any purpose if they were "coerced" or "involuntary." The question presented in the Mincey case was not whether the police had violated Miranda (the state conceded they had), but whether they had failed to satisfy the voluntariness test.
During a narcotics raid on Mincey's apartment, a police officer was shot and killed. Mincey himself was shot in the hip. According to the attending physician, Mincey "arrived at the hospital 'depressed almost to the point of coma.'"(fn12) Tubes were then placed in his throat to help him breathe, a catheter was inserted into his bladder and a device was attached to his arm so that he could be fed intravenously. Mincey was then taken to the intensive care unit.(fn13)
At eight o'clock that evening, a detective came to the intensive care unit to question Mincey about the slaying of the police officer. Unable to talk because of the tubes in his mouth, Mincey could only respond to the detective's questions by writing his answers on pieces of paper provided by the hospital.(fn14) As the Court described the situation, "while Mincey was being questioned he was lying on his back on a hospital bed, encumbered by tubes, needles, and breathing apparatus. He was. . . unable to escape or resist the thrust of [the detective's] interrogation."(fn15)
When given the warnings required by Miranda, Mincey invoked his Miranda rights. But to no avail. "Although [he] asked repeatedly that the interrogation stop until he could get a lawyer, [the detective] continued to question him until almost midnight."(fn16)
Although it is hard to believe, the Arizona courts concluded that Mincey's confession was "voluntary." The Supreme Court reversed, but the vote was not unanimous. Justice Rehnquist dissented, maintaining (as other Justices had in the pre-Miranda "voluntariness" cases) that "the Court today goes too far in substituting its own judgment for the judgment of a trial court and the highest court of a State, both of which decided these disputed issues differently than does this Court, and both of which were a good deal closer to the factual occurrences than is this Court."(fn17)
One might say that the Mincey case demonstrates that the administration of the "voluntariness" test does work. After all, the judgment of the Arizona Supreme Court was reversed in that case. But we should keep in mind that in the thirty years between Brown v. Mississippi(fn18) (the first state due process/'Voluntariness" case the Supreme Court ever reviewed) and Miranda, the High Court decided an average of only one state confession case per year.(fn19) And most of them were death penalty cases.(fn20) As Justice Black said of the due process/'Voluntariness" test during the Miranda oral arguments, "[I]f you are going to determine it [the admissibility of the confession] each time on the circumstances ... [if] this Court will take them one by one ... it is more than we are capable of doing."(fn21)
II. CONFUSION OVER, AND RESISTANCE TO, MIRANDA
To a considerable extent, Miranda was going to turn on how broadly or narrowly the Court would read Escobedo v. Illinois(fn22) Because the defendant in Escobedo had both requested and retained counsel, it was possible to read Escobedo quite narrowly. But the Warren Court was highly unlikely to do so. Even James Thompson, who had the distinction of making the losing argument in Escobedo, recognized this. Indeed, Thompson came quite close to predicting what the Miranda warnings would be.(fn23)
But other predictions of what the Warren Court would tell us in Miranda proved to be wide of the mark. A month before Miranda was decided, Henry Friendly, a member of the U.S. Court of Appeals for the Second Circuit and one of the most respected judges in the nation, balked at "conditioning" police questioning "oh the presence of counsel."(fn24) To do so, maintained Judge Friendly, is "really saying that there may be no effective, immediate questioning by the police" and "that is not a rule that society will long endure."(fn25)
We shall never know how long society would endure such a rule because neither the Warren Court nor any other court ever handed down such a rule. As Justice Sandra Day O'Connor reminded us, speaking for the Court twenty...
