Miranda and the Requirement of Rewarning: Analogizing Mosley and Edwards to Protect Post-Waiver Defendants

Abstract

The current procedural safeguards afforded to post-waiver defendants under Miranda leaves the vast majority of defendants unprotected against the very coercive pressures that Miranda aimed to dispel. Studies indicate 80% of defendants waive their Miranda rights, but the only safeguards implemented by the Supreme Court are directed at the minority of those that invoke their Miranda rights. This disparity between post-waiver and post-invocation safeguards is illogical and in direct contrast to the tenets of Miranda.Further, this problem, although widely litigated, receives little attention in legal scholarship. While most Miranda issues have been thoroughly addressed, the problem of protecting post-waiver defendants from subsequent coercion is seemingly lost within the larger subject of Miranda. In fact, no article directly addressing this issue has been written for several decades. Further, in addition to being the first article in decades to shed light on this highly litigated issue, this article also contains a full fifty state and federal circuit survey of cases that categorizes each jurisdiction’s approach.The issue of post-waiver protections is regularly litigated, but each jurisdiction is left to determine its own solution. This has lead to contrasting, and often contradictory, results. However, the Supreme Court’s lack of attention to this problem does not include an attendant lack of solutions; solutions exist in current post-invocation safeguards. Further, analogizing those protections is merited to provide equity for all defendants. Accordingly, implementing a totality-of-the-circumstances test alongside a bright-line rule provides optimal protection.By ensuring all defendants are protected, the gulf between post-waiver and post-invocation defendants would be bridged, and the tenets of Miranda would be more appropriately realized.