On the Fortieth Anniversary of Miranda: Why We Needed it, How We Got it - and What Happened to it

63 Pages Posted: 15 Nov 2006

See all articles by Yale Kamisar

Yale Kamisar

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


The pre-Miranda test for the admissibility of confessions was known as the due process voluntariness test. Given the courts' inability to articulate clear and predictable definitions of voluntary or involuntary confessions and the fact that the pre-Miranda test was too amorphous, too subjective and too time-consuming to administer, it seemed inevitable that the Supreme Court would seek a better way to deal with the confession problem. That way turned out to be Miranda.

At first, Miranda was widely and harshly criticized. It is now widely agreed, however, that Miranda was a compromise between those who liked the voluntariness test and those who wanted to abolish police interrogation as we have long known it.

Miranda does not condition police questioning on the presence of counsel (as many feared the Court would do). Rather, it conditions it on the giving of certain warnings of rights and the waiver of those rights. Miranda allows the police to obtain these waivers without the advice or presence of defense counsel. (Numerous studies establish that most suspects waive their rights.)

When it became clear that Miranda was having little impact on the confession rate, most commentators stopped criticizing the famous case for going too far and many began criticizing it for not going far enough. This article explores why Miranda has had only a negligible impact on law enforcement. It also maintains that the right question is not What good does Miranda do?, but at this point in time, how much harm would it cause to abolish Miranda?

Keywords: confessions, police interrogation, Miranda, voluntariness of confessions

JEL Classification: K00, K1, K10

Suggested Citation

Kamisar, Yale, On the Fortieth Anniversary of Miranda: Why We Needed it, How We Got it - and What Happened to it. Ohio State Journal of Criminal Law, 2007, San Diego Legal Studies Paper No. 07-76, Available at SSRN: https://ssrn.com/abstract=944546

Yale Kamisar (Contact Author)

University of San Diego School of Law ( email )

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University of Michigan Law School ( email )

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