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The Rise, Decline and Fall (?) of Miranda

93 Pages Posted: 12 Oct 2012 Last revised: 22 Oct 2012

Yale Kamisar

University of San Diego School of Law; University of Michigan Law School

Date Written: October 12, 2012

Abstract

Miranda v. Arizona (1966) was the centerpiece of the Warren Court’s so-called revolution in American criminal procedure. But the Warren Court disbanded more than 40 years ago. And President Richard Nixon, who campaigned against the Warren Court, made four appointments to the U.S. Supreme Court.

Since then, led over the decades by Warren Burger, William Rehnquist and Antonin Scalia, the Court has seriously weakened Miranda in various ways. A good example is Berghuis v. Thompkins (2010), which allows the police to obtain a waiver of a custodial suspect’s rights after they have started to interrogate him.

There has been much talk lately to the effect that Miranda is dead or dying – or might as well be dead. Even some liberal commentators have concluded that the time has come to give Miranda a respectful burial and “move on.” But move on to what? Can Congress or the state legislatures be counted on to protect those suspected of, or arrested for, serious crimes?

Keywords: confessions, police interrogation, Miranda, voluntariness, privilege against self-incrimination, right to counsel, prophylactic rules

JEL Classification: K10, K39

Suggested Citation

Kamisar, Yale, The Rise, Decline and Fall (?) of Miranda (October 12, 2012). Washington Law Review, Vol. 87, No. 4, December 2012; San Diego Legal Studies Paper No. 12-097; U of Michigan Public Law Research Paper No. 296. Available at SSRN: https://ssrn.com/abstract=2160990

Yale Kamisar (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States
619-260-4600, x8827 (Phone)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

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