25 Pages Posted: 28 Mar 2003
In this essay, I respond to the position, taken by the Solicitor General of the U.S. Dept. of Justice in Chavez v. Martinez, 122 S.Ct. 2326 (2002) and by Professor Steven Clymer in 112 Yale L.J. 447 (2003), that the police are free to disgregard Miranda. I suggest that the privilege against self-incrimination is best viewed as a ban on certain official conduct outside of a criminal trial, not as an evidentiary rule. The Supreme Court in Kastigar v. United States, by blessing prosecutorial grants of immunity pursuant to statute, did not intend to extend this same authority to police officers in back rooms. I further argue that a deliberate violation of any right invoked under Miranda should give rise to a viable civil rights claim. Scholarly attacks on Miranda are simply misdirected unhappiness with the privilege itself. Finally, I suggest that the tragic events of September 11, 2001, do not warrant the abandonment of the privilege in ordinary domestic criminal cases.
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