Thanks very much. It was a hell of a ride. The bad part was a had to walk away from a job I was good at. The good part was that I got to look in the mirror without wincing.
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.
"...Miranda should not be overruled because a lot of police officers would take that as a go-ahead to beat confessions out of suspects."
With all respect to the former Chief, that is consequentialist thinking that has no place in constitutional interpretation. It's just like the pro-Roe people saying that Roe should not be overturned because some women and girls will have to travel out of state to get abortions. That is very likely true, but it has nothing to do with whether a right to abortion is or is not in the Constitution. The Court ought not to be guessing about whether good or bad things will follow its decision. It ought simply to look at the Constitution and follow what's there, while being at least equally mindful of what's NOT there. We have the political branches to cope with consequences.
"... 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."
I'm in favor of bright line rules, but to help the parties, and citizens generally, not judges. The law abounds with difficult judgments (in criminal cases, such judgments are all over the place when trying to discern the defendant's intent, for example), but this is what we pay courts to do. If judges find it too hard, I've got a line ten miles long looking to get their fancy job (I actually did when I was in White House Counsel's Office).
The Fifth Amendment turns on whether there was compulsion. There are many cases in which the police can engineer compulsion or its functional equivalent even with a careful rendition of warnings -- and many others in which there will be no compulsion even without such a rendition. Respecting the Fifth Amendment's command means that we have to do the work, case by case and fact pattern by fact pattern, to decide when compulsion was present. Yes, that can be hard and detailed, but it was equally hard and detailed when the Framers wrote the Fifth Amendment. They did not see fit to invent a warnings requirement, much less an automatic rule of exclusion. It's not up the the courts 170 years later to decide that the Framers were just too dumb to see the need, so we In Our Wisdom will do it for them.
If Congress or state legislatures want by statute to create a warnings regimen, that is a different matter entirely. If Miranda goes down, I think most of them will.
By the way, thank you for your service at the Court. Your boss looked like the Justice from Central Casting.
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.
Thanks very much. It was a hell of a ride. The bad part was a had to walk away from a job I was good at. The good part was that I got to look in the mirror without wincing.
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.
"...Miranda should not be overruled because a lot of police officers would take that as a go-ahead to beat confessions out of suspects."
With all respect to the former Chief, that is consequentialist thinking that has no place in constitutional interpretation. It's just like the pro-Roe people saying that Roe should not be overturned because some women and girls will have to travel out of state to get abortions. That is very likely true, but it has nothing to do with whether a right to abortion is or is not in the Constitution. The Court ought not to be guessing about whether good or bad things will follow its decision. It ought simply to look at the Constitution and follow what's there, while being at least equally mindful of what's NOT there. We have the political branches to cope with consequences.
"... 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."
I'm in favor of bright line rules, but to help the parties, and citizens generally, not judges. The law abounds with difficult judgments (in criminal cases, such judgments are all over the place when trying to discern the defendant's intent, for example), but this is what we pay courts to do. If judges find it too hard, I've got a line ten miles long looking to get their fancy job (I actually did when I was in White House Counsel's Office).
The Fifth Amendment turns on whether there was compulsion. There are many cases in which the police can engineer compulsion or its functional equivalent even with a careful rendition of warnings -- and many others in which there will be no compulsion even without such a rendition. Respecting the Fifth Amendment's command means that we have to do the work, case by case and fact pattern by fact pattern, to decide when compulsion was present. Yes, that can be hard and detailed, but it was equally hard and detailed when the Framers wrote the Fifth Amendment. They did not see fit to invent a warnings requirement, much less an automatic rule of exclusion. It's not up the the courts 170 years later to decide that the Framers were just too dumb to see the need, so we In Our Wisdom will do it for them.
If Congress or state legislatures want by statute to create a warnings regimen, that is a different matter entirely. If Miranda goes down, I think most of them will.
By the way, thank you for your service at the Court. Your boss looked like the Justice from Central Casting.
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.