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Miranda and Its (More Rights-Protective) International Counterparts

20 UC Davis Journal of International Law & Policy 1 (2013)

Florida International University Legal Studies Research Paper No. 13-35

45 Pages Posted: 15 Oct 2013 Last revised: 20 Apr 2017

Megan Fairlie

Florida International University (FIU) - College of Law

Date Written: December 19, 2013

Abstract

Given that Miranda’s warnings are nearly identically reproduced in international criminal procedure, logic suggests that the rights of questioned suspects are equally valuable — and equally valued — in both realms. But history has its own logic, and Miranda’s history in the United States includes a steady erosion of its ability to safeguard the rights of suspects. This is particularly true with respect to the limitations placed on Miranda’s custodial trigger and the lessening of the requirements for an effective waiver. Recent efforts to eviscerate Miranda through these two channels, including Berghuis v. Thompkins (2010) and Howes v. Fields (2012), provide a stark contrast to the more rights-protective dictates of international criminal justice. As a result, “international Miranda” is now more faithful to both the text and intent of the Miranda opinion than current domestic practice.

Keywords: Miranda doctrine, interrogation, ICTY, ICTR, SCSL, ICC, international criminal courts, custody, standard of proof, remedies, violations, shared approach, exclusion, warnings

Suggested Citation

Fairlie, Megan, Miranda and Its (More Rights-Protective) International Counterparts (December 19, 2013). 20 UC Davis Journal of International Law & Policy 1 (2013); Florida International University Legal Studies Research Paper No. 13-35. Available at SSRN: https://ssrn.com/abstract=2339782

Megan Fairlie (Contact Author)

Florida International University (FIU) - College of Law ( email )

11200 SW 8th St.
RDB Hall 1097
Miami, FL 33199
United States

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