The Paths Not Taken: The Supreme Court's Failures in Dickerson

43 Pages Posted: 15 Jul 2011

See all articles by Paul G. Cassell

Paul G. Cassell

University of Utah - S.J. Quinney College of Law

Date Written: July, 13 2011


The issue of the Court’s “deconstitutionalization” of Miranda lay at the heart of the question presented in Dickerson v. United States. Yet, the majority opinion devoted very little to explaining why the Court’s own, repeated statements that Miranda’s safeguards were mere prophylactic standards should not be taken at face value. This cursory treatment leaves the Miranda doctrine incoherent. The thesis of this Article is that the Court could have written Dickerson so as to harmonize its doctrine.

Part I suggests the Court could have treated Miranda as a form of constitutional common law, an interim court-created remedy for the enforcement of Fifth Amendment rights. Part II articulates another path by which the Court could have concluded that Congress’s alternative to Miranda in § 3501, bolstered by improved tort remedies and other post-Miranda innovations, provided a viable substitute to Miranda. Part III lays out yet another path—one consistent with City of Boerne v. Flores—by which the Court could have created a rebuttable presumption of an involuntary confession. Finally, the Article turns to other problems in Parts IV and V: Dickerson’s lack of deference for congressional findings and its absence of any encouragement for Congress to adopt alternatives to Miranda, such as videotaping police interrogations.

Keywords: Victim, Crime Victim, Impact Statements, Criminal Justice, Sentencing

Suggested Citation

Cassell, Paul G., The Paths Not Taken: The Supreme Court's Failures in Dickerson (July, 13 2011). Michigan Law Review, Vol. 99, 2001, Available at SSRN:

Paul G. Cassell (Contact Author)

University of Utah - S.J. Quinney College of Law ( email )

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