In an earlier entry, “Democracy Dies in Judicial Imperialism,” I noted the similarity between Roe v. Wade and Miranda v. Arizona. In each case, the Court treated the liberal elite’s view of law as if it were part of the Constitution, thus to insulate it from any input from that pesky hoi polloi sometimes known as “voters.”
I clerked for an unnamed conservative Justice many decades ago and his view was that Miranda should not be overruled because a lot of police officers would take that as a go-ahead to beat confessions out of suspects. I think that was probably true then, I don't know if it would be true today, after decades of compliance with Miranda. To which you will respond, coerced confessions have always been unconstitutional under the 5th amendment so Miranda was not necessary. To which the response is that the Court found it difficult if not impossible to police the line between an unconstitutional coerced confession and a confession where the police didn't lean too hard on the suspect and a bright-line prophylactic rule is more practical.
The two key attributes going for Miranda, (1) that cop shows have embedded Miranda rights for decades in their stories, and (2) that cops themselves have widely accepted the process - we don’t see state or national protests by cops against continuing w/ the practice of reading a person in custody their “Miranda rights”, can essentially be combined into one, imho.
They enshrine the obligation of the all-powerful government to allow the criminal suspect to have at least one person at his/her side before he/she says anything which might incriminate him/her.
Historically, the arguments pro- and con- have revolved around trying to safeguard the suspect from coercions like beatings and torture. However, I’ve had a more abstract take - namely, that there is intrinsic value to this protection, which I conjecture that American citizens (and even permanent residents) sense intuitively. It’s essentially a corollary of the presumption of innocence.
Furthermore, w/ the advent of video recordings of police interviews, it’s even more important for the suspect to have this layer of protection - as can be exemplified by the recent arrests of Trump-associated figures - because the FBI seems to prefer conducting arrests by dragging a person out of bed in the middle of the night… Who among us would look good disheveled, in pajamas or worse, in a video seated at a table opposite a uniformed police officer?
A common everyday “civil version” of the Miranda “criminal scenario” is the general wisdom of always having an advisor (of some sort, or at least a family member) accompany you to any doctor’s visit when a major decision is going to be made about your medical diagnosis or treatment.
I'm no fan of Miranda or the right against self-incrimination in general, but I think Miranda is fundamentally different from Roe.
The right against self-incrimination, as well as the right to counsel, which is also implicated in the Miranda warnings, lie in a shadowland between procedural and substantive due process of law. I think they're procedural, since they relate to the production of evidence and protections against unfair prosecution, but in any event the right against self-incrimination and the right to counsel are specifically recognized in the Constitution, which separates Miranda from Roe and puts Miranda in the Supreme Court's wheelhouse. Furthermore, the Miranda warnings are logically tailored to the rights they protect, which cannot be said of the trimester/viability standards in Roe, and they involve the process that leads to a judicial determination of guilt or innocence, which strikes me as appropriate.
Somehow I had never read your Sally Yates piece. It's terrific and illuminating.
I clerked for an unnamed conservative Justice many decades ago and his view was that Miranda should not be overruled because a lot of police officers would take that as a go-ahead to beat confessions out of suspects. I think that was probably true then, I don't know if it would be true today, after decades of compliance with Miranda. To which you will respond, coerced confessions have always been unconstitutional under the 5th amendment so Miranda was not necessary. To which the response is that the Court found it difficult if not impossible to police the line between an unconstitutional coerced confession and a confession where the police didn't lean too hard on the suspect and a bright-line prophylactic rule is more practical.
The two key attributes going for Miranda, (1) that cop shows have embedded Miranda rights for decades in their stories, and (2) that cops themselves have widely accepted the process - we don’t see state or national protests by cops against continuing w/ the practice of reading a person in custody their “Miranda rights”, can essentially be combined into one, imho.
They enshrine the obligation of the all-powerful government to allow the criminal suspect to have at least one person at his/her side before he/she says anything which might incriminate him/her.
Historically, the arguments pro- and con- have revolved around trying to safeguard the suspect from coercions like beatings and torture. However, I’ve had a more abstract take - namely, that there is intrinsic value to this protection, which I conjecture that American citizens (and even permanent residents) sense intuitively. It’s essentially a corollary of the presumption of innocence.
Furthermore, w/ the advent of video recordings of police interviews, it’s even more important for the suspect to have this layer of protection - as can be exemplified by the recent arrests of Trump-associated figures - because the FBI seems to prefer conducting arrests by dragging a person out of bed in the middle of the night… Who among us would look good disheveled, in pajamas or worse, in a video seated at a table opposite a uniformed police officer?
A common everyday “civil version” of the Miranda “criminal scenario” is the general wisdom of always having an advisor (of some sort, or at least a family member) accompany you to any doctor’s visit when a major decision is going to be made about your medical diagnosis or treatment.
I'm no fan of Miranda or the right against self-incrimination in general, but I think Miranda is fundamentally different from Roe.
The right against self-incrimination, as well as the right to counsel, which is also implicated in the Miranda warnings, lie in a shadowland between procedural and substantive due process of law. I think they're procedural, since they relate to the production of evidence and protections against unfair prosecution, but in any event the right against self-incrimination and the right to counsel are specifically recognized in the Constitution, which separates Miranda from Roe and puts Miranda in the Supreme Court's wheelhouse. Furthermore, the Miranda warnings are logically tailored to the rights they protect, which cannot be said of the trimester/viability standards in Roe, and they involve the process that leads to a judicial determination of guilt or innocence, which strikes me as appropriate.