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Abstract:
It is difficult, if not impossible, to discuss Dickerson v. United States intelligently without discussing Miranda, whose constitutional status Dickerson reaffirmed (or, one might say, resuscitated). It is also difficult, if not impossible, to discuss the Dickerson case intelligently without discussing cases the Court has handed down in the five years since Dickerson was decided. The hard truth is that in those five years the reaffirmation of Miranda's constitutional status has become less and less meaningful.

In this paper I want to focus on the Court's characterization of statements elicited in violation of the Miranda warnings as not actually "coerced" or "compelled" but obtained merely in violation of Miranda's "prophylactic rules." This terminology has plagued the Miranda doctrine and puzzled and provoked many commentators since then - Justice Rehnquist utilized this label to describe and to diminish Miranda - and he was the first Justice ever to do so - thirty-one years ago.

Miranda warnings, prophylactic rules, rights against self incrimination, constitutional protection

Abstract:
The pre-Miranda test for the admissibility of confessions was known as the due process voluntariness test. Given the courts' inability to articulate clear and predictable definitions of voluntary or involuntary confessions and the fact that the pre-Miranda test was too amorphous, too subjective and too time-consuming to administer, it seemed inevitable that the Supreme Court would seek a better way to deal with the confession problem. That way turned out to be Miranda.

At first, Miranda was widely and harshly criticized. It is now widely agreed, however, that Miranda was a compromise between those who liked the voluntariness test and those who wanted to abolish police interrogation as we have long known it.

Miranda does not condition police questioning on the presence of counsel (as many feared the Court would do). Rather, it conditions it on the giving of certain warnings of rights and the waiver of those rights. Miranda allows the police to obtain these waivers without the advice or presence of defense counsel. (Numerous studies establish that most suspects waive their rights.)

When it became clear that Miranda was having little impact on the confession rate, most commentators stopped criticizing the famous case for going too far and many began criticizing it for not going far enough. This article explores why Miranda has had only a negligible impact on law enforcement. It also maintains that the right question is not What good does Miranda do?, but at this point in time, how much harm would it cause to abolish Miranda?

confessions, police interrogation, Miranda, voluntariness of confessions

Abstract:
Looking back on forty-five years of law review writing, Professor Kamisar concludes that, to use George Orwell's words, he has been moved to write by "a sense of injustice" and the need to "expose" "some lie," e.g., the lie that the trial judge or the prosecuting attorney can be counted on to protect the rights of unrepresented defendants. He maintains further that law professors generally should feel an obligation to write because they can think through and research exhaustively any and every problem they meet along the way without worrying about billable hours and they can do so "under working conditions that thousands of busy, hurried practitioners would envy."

legal education, law review articles, continuing education

Abstract:
The use of waterboarding and other harsh interrogation techniques to extract information from suspected terrorists has been widely debated in recent years. But American police officers used very similar methods to obtain confessions from suspected murders and bank robbers way back in the 1920s and 30s - the era of the third degree. In those days the police interrogators of Chicago, New York and other big American cities resorted to the water cure, mock executions of suspect's accomplices or grillings by relays of police under blinding lights.

After a long struggle, police reformers and high-ranking law enforcement officials convinced those who did the interrogations that the old violent ways had to be replaced by psychological methods. In this regard the police were aided by the authors of various interrogation manuals.

For example, the author of one police manual, Lt. W.R. Kidd, insisted that nothing good could be said for torture or other third degree methods. Why? Because when a suspect is subjected to sufficient torture one of three things will happen: (1) he will tell his interrogators anything he thinks they want to hear; (2) he will go insane; or (3) he will die.

The most remarkable thing about Kidd's manual is that it was written in 1940 and was the first interrogation manual ever published in America.

How much progress have we made since then?

torture, waterboarding, police interrogation, confession

Abstract:
In Washington v. Glucksberg (2007), the Court declined to find a right to physician-assisted suicide (PAS) in the Constitution. Not a single justice dissented. One would expect such a ruling to be quite secure. But Lawrence v. Texas (2003), holding that a state cannot make consensual homosexual conduct a crime, is not easy to reconcile with Glucksberg. Lawrence certainly takes a much more expansive view of substantive due process than did Glucksberg.

It is conceivable that the five justices who made up the Lawrence majority - all of whom still sit on the Court - might overrule Glucksberg. For various reasons, however, this seems improbable.

Unlike the situation with respect to the pre-Lawrence era, Glucksberg does not stigmatize any politically vulnerable group. When there is no democratic defect in the political process, there is much to be said for courts deferring to reasonable legislative judgments. Moreover, unlike the developments preceding Lawrence, there has been no emerging awareness of a right or liberty to enlist the assistance of a physician in committing suicide. No state supreme court has found a right to PAS in its own state constitution. Nor, in the decade since Glucksberg, has any state legislature legalized PAS. And attempts have been made to do so in some twenty states.

assisted suicide, death, dying, personal autonomy