Abstract

http://ssrn.com/abstract=1960748
 


 



AEDPA's Ratchet: Invoking the Miranda Right to Counsel after the Antiterrorism and Effective Death Penalty Act


David S Rubenstein


University of Washington - School of Law

November 16, 2011

Washington Law Review, Vol. 86, p. 905, 2011

Abstract:     
In Davis v. United States, the Supreme Court established a high standard to invoke the Miranda right to counsel, holding that a suspect must make a clear and unequivocal request for an attorney. Two years later, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA), which created a highly deferential standard of review for state court judgments challenged under federal habeas corpus jurisdiction. Generally, a state prisoner challenging the alleged deprivation of his Miranda right to counsel may obtain federal court relief under AEDPA only if his conviction in state court was based on an ‘objectively unreasonable’ application of Supreme Court precedent. This Comment argues that the AEDPA standard of review effectively raises the bar for individuals to successfully invoke their right to counsel above what Davis requires, even outside the habeas context. This means that AEDPA's procedural standard of review has effected a shift in substantive law, even if courts did not intend that shift. To remedy this skewing of substantive law, this Comment proposes that the Supreme Court discourage trial and direct-review courts from basing their decisions on AEDPA cases.

Number of Pages in PDF File: 35

Keywords: Miranda, right to counsel, invocation, AEDPA, Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254, ratchet, habeas corpus, criminal law, criminal procedure

JEL Classification: K14, K40, K41

working papers series





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Date posted: November 23, 2011 ; Last revised: July 4, 2014

Suggested Citation

Rubenstein, David S, AEDPA's Ratchet: Invoking the Miranda Right to Counsel after the Antiterrorism and Effective Death Penalty Act (November 16, 2011). Washington Law Review, Vol. 86, p. 905, 2011. Available at SSRN: http://ssrn.com/abstract=1960748 or http://dx.doi.org/10.2139/ssrn.1960748

Contact Information

David Stewart Rubenstein (Contact Author)
University of Washington - School of Law ( email )
William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States

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