W(h)ither Miranda?

A new paper asks the very question: Has Miranda become ineffective? Not because it’s not needed anymore, but because police departments are finding ways to get around it while achieving the same results. The conclusion is pretty bleak:

So how well do Miranda’s safeguards fare overall? I believe that we have a Miranda rule that is somewhat limited in reach, that sometimes locates warnings and waivers within the heart of a highly-structured interrogation process, that provides admonitions that many suspects do not understand, and that appears not to afford many suspects a meaningful way to assert their Fifth Amendment rights. As a prophylactic device to protect suspects’ privilege against self incrimination, I believe that Miranda is largely dead. I would welcome compelling evidence to the contrary (or proof that California is a complete outlier), but I do not believe such evidence exists.

This paper does an excellent analysis of the Court’s decision in Miranda and subsequent decisions that defined gutted its meaning and scope:

But a primary virtue of Miranda is, in theory, giving clear guidance and bright line rules to police, judges and prosecutors, thus avoiding difficult individualized assessments. Thus, it is not so much that the Court has retreated after Miranda but rather that the one-size-fits-all safeguards put in place by the Miranda Court could never have functioned as intended. Or perhaps it would be more accurate to say that a far higher proportion of defendants than the Court initially anticipated have been left uninformed and unempowered by form warnings.

So whither Miranda? Will it provide more benefit to abandon Miranda? The paper suggests legislative action:

One possible outcome might be legislation that directly regulates the police and affords greater protection to suspects than Miranda currently offers, perhaps in conjunction with a modified system of warnings. A legislature might, for example, require warnings in very simple language and instruct police to give them prior to any suspect interviews or interrogations. It could require that all interrogations be videotaped, a movement that is slowly gaining ground.

H/T: Appellate.

Update: I should have checked before posting. SimpleJustice also has some thoughts.

7 thoughts on “W(h)ither Miranda?

  1. SHG

    Good morning, Gid. I’m going to deal with the issue of videotaping interrogations some other day, but for the moment, I think it suffers from the same problems Miranda does, except that it will prove far more damning and essentially impossible to overcome. It’s another good idea that may come back to bite us in the butt.

    Reply
  2. Gideon Post author

    I think the videotaping works if we move away from a bright-line rule. If there was greater focus on the voluntariness of a confession, then a video from start to finish might better serve the judge in making the determination of whether a confession was voluntary.

    Obviously, you are going to have people who feel coerced regardless, but that’s another issue, where perhaps education might come into play.

    Of course, you are correct that if there is a coerced confession – the coercion aspect of which is not “caught on tape”, then any challenge to it might be completely useless.

    I think it’s better than what we currently have, though. If nothing else, the cops might behave a little better.

    Reply
  3. TexPD4Parity

    I was particularly interested in that article’s comments as it related to juveniles. In Texas, juveniles in custody have to be magistrated with statutory warnings before giving a written statement and then have to have a magistrate go over the statement with them before signing it. The police get around this by simply interviewing them as a witness in a non-custodial situation, turning them loose and arresting them at a later time.

    Reply
  4. SPO

    Given Miranda’s obvious flaws, as aptly described in SCalia’s dissent in Dickerson, it’s not surprising that people are taking a second look. Voluntariness gets the short shrift–oh well, be careful what you wish for.

    Reply
  5. Güvenlik kameras?

    I think the videotaping works if we move away from a bright-line rule. If there was greater focus on the voluntariness of a confession, then a video from start to finish might better serve the judge in making the determination of whether a confession was voluntary.

    Obviously, you are going to have people who feel coerced regardless, but that’s another issue, where perhaps education might come into play.

    Of course, you are correct that if there is a coerced confession – the coercion aspect of which is not “caught on tape”, then any challenge to it might be completely useless.

    I think it’s better than what we currently have, though. If nothing else, the cops might behave a little better.

    Reply
  6. gizli kamera

    was particularly interested in that article’s comments as it related to juveniles. In Texas, juveniles in custody have to be magistrated with statutory warnings before giving a written statement and then have to have a magistrate go over the statement with them before signing it. The police get around this by simply interviewing them as a witness in a non-custodial situation, turning them loose and arresting them at a later time

    Reply

Leave a Reply