'You Have the Right to an Attorney', but Not Right Now: Combating Miranda’s Failure by Advancing the Point of Attachment Under Article XII of the Massachusetts Declaration of Rights
57 Pages Posted: 16 Dec 2010 Last revised: 13 Jun 2011
Date Written: June 6, 2011
Forty years of history has clearly demonstrated that Miranda v. Arizona has completely failed to honor its objectives. In this article, I examine Miranda’s failure by exposing its mythology. Then, I propose a novel solution for the Commonwealth of Massachusetts, inviting the Supreme Judicial Court (‘SJC’) to advance the point where the right to counsel attaches from arraignment to arrest, or at the very latest, prior to the commencement of custodial interrogation. I argue that this proposal is socially justified, a logical extension of the principles embodied in article 12 of the Massachusetts Declaration of rights, and consistent with the SJC’s bold and courageous history of departing from Supreme Court jurisprudence by providing greater protections to the citizens of Massachusetts.
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