Breaking Out of 'Custody': A Feminist Voice in Constitutional Criminal Procedure

Abstract

This article applies a feminist lens to a key area within the Fifth Amendment’s jurisprudence on the privilege against self-incrimination. In light of the central role interrogations and confessions continue to play in the U.S. criminal legal system, it focuses on one of the most studied, debated, and glorified Supreme Court decisions — Miranda v. Arizona — and the key determination of “custody” it entails. The article examines the objective reasonable person standard that controls the determination of “custody” and hence the applicability of Miranda warnings. It suggests that the reasonable person standard deprives the interrogated person from actual protection of one’s right against self-incrimination, while perpetuating male domination and stereotypical thinking about women. Drawing mainly from postmodern feminism, the article argues that this standard excludes and invalidates the real life experiences of women and other disempowered members of society, while masking a legal discourse that perpetuates patriarchal subordination of women. Alternatively, the article advocates the adoption of a personalized standard in the “custody” inquiry, and calls for the infusion of the law with experiential narratives.

Keywords: Fifth Amendment, Miranda, feminist jurisprudence, feminism, reasonable person, interrogation, self-incrimination