Did He or Didn't He? The Effect of Dickerson on the Post-Waiver Invocation Equation

66 Pages Posted: 15 Dec 2008

See all articles by Harry M. Caldwell

Harry M. Caldwell

Pepperdine University - Rick J. Caruso School of Law

Anthony X. McDermott


Date Written: December 12, 2008


Professors Caldwell and McDermott consider what happens when murder suspect, Kurt Michaels, who initially waived Miranda protections, asks, or seems to ask, for an attorney in the middle of interrogation and subsequently confesses to the murder of Joanne Clemons. Should the question be answered in favor of law enforcement which is trying to obtain critical confessions or in favor of protecting the individuals from police abuse? This article traces the development of confession law (protection of voluntariness and privilege against self-incrimination) from its roots in common law, to Miranda, which applied confession law protections to custodial interrogations. Miranda was cast in terms of waiver and invocation: Custodial interrogation could not begin without an effective waiver of Miranda protections, and an invocation of Miranda at any point during questioning would mean questioning must stop. Miranda was criticized for veering too far toward protecting the rights of the accused. Post-Miranda, the U.S. Supreme Court whittled away at Miranda rules until they were deemed merely prophylactic, and not constitutionally guaranteed. Consequently, the post-waiver invocation doctrine that developed post-Miranda culminated in Davis v. United States, which held that after waiver of Miranda protections only an unequivocal request for counsel could stop further questioning. Davis was based on the premise that the Sixth Amendment right to counsel only applies after the initiation of criminal proceedings, not during custodial interrogations. In Dickerson v. United States, the Supreme Court reviewed a Fourth Circuit decision that had taken post-Miranda developments too far, holding since Miranda was not constitutionally required it was superseded by the totality of circumstances voluntariness standard in US Code section 3501. In a surprising decision, the Dickerson Court unequivocally held that Miranda was constitutionally required as an effective way to secure Fifth Amendment rights. After Dickerson, the Davis standard must be reconsidered in view of the fundamental constitutional rights at stake.

Keywords: Miranda, Fifth Amendment, custody, confess, police, interrogation, invoke, right to counsel, Davis, Dickerson, suspect, Constitution, self-incrimination

Suggested Citation

Caldwell, Harry M. and McDermott, Anthony X., Did He or Didn't He? The Effect of Dickerson on the Post-Waiver Invocation Equation (December 12, 2008). University of Cincinnati Law Review, Vol. 69, 2001, Available at SSRN: https://ssrn.com/abstract=1315437

Harry M. Caldwell (Contact Author)

Pepperdine University - Rick J. Caruso School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

Anthony X. McDermott


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