The Miranda Debate: Questions Past, Present, and Future

Abstract

Miranda has become a noun, a verb, an adjective, an epithet, a rallying cry, a scapegoat, and a cottage industry for law professors. Attention now is focused on whether Miranda will even survive. But, those on both sides of the debate both recognize that, with or without Miranda, there are important and unresolved questions about the proper scope of police interrogation, particularly about the use of psychological interrogation techniques that are based on deception.

In the context of reviewing a recently published anthology of the voluminous literature on Miranda v. Arizona, the author of this essay considers three of the most fundamental questions about police interrogation of suspects. She looks to Miranda's past to consider the question that has shaped and stoked the Miranda debate: how much do we really want confessions? While there are still critics of law enforcement's emphasis on confessions, both the Supreme Court and much of the public seem to have concluded that confessions are essential to effective law enforcement.

The author next looks to the most important question at present: will Miranda survive the challenge of United States v. Dickerson in the Supreme Court. The author expresses reservations about the reliability of the empirical studies on Miranda's costs. She concludes, however, that the costs are so apparent based on logic and intuition alone, that Miranda is likely to remain the subject of debate even if it is not found superseded by 18 U.S.C. ?3501, the statute at issue in Dickerson.

Finally, the author considers what is certain to be a critical question in the future: what limits are there, or should there be, on the use of deception during interrogation? Even if Miranda survives the challenge of Dickerson, the limited protection offered by Miranda may prompt defendants to increasingly seek relief, under the due process voluntariness test, from the deceptive interrogation techniques regularly used by the police.

JEL Classification: K14