Miranda's Exceptions in a Post-Dickerson World

Abstract

Can holding in Miranda v. Arizona, as well as numerous exceptions to its dictates, be adequately justified after Supreme Court's latest pronouncement in Dickerson v. United States? Chief Justice Warren in Miranda held that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of defendant unless it demonstrates use of procedural safeguard effective to secure privilege against self-incrimination. While this holding appeared to enshrine four warnings into Fifth Amendment itself, this interpretation was short-lived. Chief Justice Burger, in crafting an impeachment exception in Harris v. New York, began a series of exceptions based upon premise that a Miranda violation does not necessarily violate violation. Conservative legal scholars responded to deconstitutionalization of Miranda by suggesting that Court had no authority, pursuant to Article III of federal Constitution, to reverse state criminal convictions absent an actual violation. A rogue Assistant United States Attorney and a conservative law professor convinced Fourth Circuit that a largely ignored statute Congress enacted in 1968 to overrule Miranda had done just that. Finally, Chief Justice Rehnquist, in terribly disappointing Dickerson case reversing Fourth Circuit, opined that Miranda has constitutional underpinnings, yet its exceptions remain in force. Professor George Thomas and I, in a symposium issue at 99 Michigan Law Rev. 1030 (2001), reach same general conclusions regarding both justification of Miranda (it can be satisfactorily explained), and fate of pre-Dickerson exceptions to Miranda (they healthily survive). However, we reach these conclusions by radically different routes: Professor Thomas utilizes malleable due process clause, while I rely upon flexibility of prophylactic rules. While this difference may not seem striking when focusing solely upon Miranda warnings, it is stark when attempting to justify Warren Court revolution as a whole. In this brief commentary, I respond to Professor Thomas' thoughtful and creative but, in my opinion, ultimately unpersuasive attempt to relocate Miranda warnings from Fifth Amendment's self-incrimination clause to Fourteenth Amendment's due process clause. The warnings do not fit comfortably in either substantive or procedural due process, nor does relocation fully resolve what he calls Miranda's mysteries. On other hand, my more conceptually pleasing proposal not only resolves all aspects of Miranda, but also accounts for many similar doctrinal devices (what I call prophylactic rules and incidental rights) throughout criminal procedure. It does this by sharing power with other branches of federal and state governments, and by stimulating social science research that may general alternative improved procedures.