Constitutional Theory for Criminal Procedure: Miranda, Dickerson, and the Continuing Quest for Broad-but-Shallow

Abstract:     
This article analyzes the Supreme Court's recent decision in Dickerson v. United States, which reaffirmed Miranda v. Arizona. Adopting some terminology from Cass Sunstein's book "One Case at a Time," the article characterizes Dickerson as a narrow and shallow opinion. The rule announced by the Court - Miranda remains good law - preserved the status quo without purporting to resolve related issues. The principle justification for this narrow holding was stare decisis, a premise common to most if not all schools of thought about constitutional interpretation.

In constitutional law at large, Sunstein has made a plausible case for this sort of "judicial minimalism." This article contends that the criminal procedure context, in contrast to constitutional law at large, wide rules are intensely desirable. Given the volume of criminal procedure cases, the absence of constructive legislative intervention, and the reliance interest created by the prevalence of costly suppression and retrial remedies, second-best clear rules are preferable to case-by-case adjudication.

Wide rules, however, run into trouble on the dimension of depth. It is difficult to derive bright-line rules from the relevant legal materials without making intensely controversial doctrinal moves. Undertheorized agreement is thus difficult to generate in the criminal procedure context. Over time, as some justices idiosyncratically perceive distinctions between cases imperceptible to the majority, inconsistencies in the law develop. Miranda is a case in point. As Dickerson illustrates, a majority of the justices are quite unwilling to overrule so prominent a landmark. But prior cases admitting derivative evidence and tainted statements for impeachment are inconsistent with Miranda's deep justification.

The Court's refusal to reconcile the impeachment and fruits cases with Miranda itself leaves lower courts and police with no guidance. For example, the district court relied on Fourth Circuit precedent holding that Miranda-tainted derivative evidence would never be excluded. Yet the Supreme Court continues to adhere to the Kastigar standard which excludes all fruits of testimony compelled under an immunity order. If, as the Dickerson opinion says repeatedly, Miranda is a constitutional decision based on the Fifth Amendment privilege, are the impeachment cases still good law? Is Kastigar?

The article suggests two possibilities for fostering the development of wide criminal procedure rules supported by shallow justifications. One approach is a more scrupulous approach to stare decisis. Individual justices adopting this approach would follow the justifications, as well as the holdings, of prior cases. On the other hand, when a majority of the Court is convinced a prior decision is mistaken, they should be willing to overrule openly rather than to put on the fig leaf of unconvincing distinctions. In other words, until critics of a precedent persuade a fifth justice, each should adhere to the justifying logic as well as the precise holding of prior cases.

This account directly challenges Justice Scalia's expressed determination to continue to treat Title II of the Crime Control Act as constitutional. The article submits that the practice of continued dissent, as distinct from concurrence-with-critique, is inconsistent with Cooper v. Aaron and injurious to rule-of-law values that are especially important in the criminal procedure context.

The other proposed strategy for fostering undertheorized agreement in criminal procedure cases is a turn to more general doctrinal provisions, such as the Fourth Amendment and the due process clauses. The most widely-shared commitment in criminal justice is to instrumental reliability. Justices who agreed on the importance of reliability might be able to develop clear and sustainable rules more easily by working under the rubric of Fourth Amendment "reasonableness" and the procedural due process calculus of Mathews v. Eldridge.

JEL Classification: K7

Accepted Paper Series