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Monday, June 20, 2005

New Article Spotlight: Joelle Anne Moreno

Moreno CrimProf Joelle Anne Moreno of New England has posted Faith-Based Miranda: Why the New Missouri v. Seibert Police Bad Faith Test is a Terrible Idea on SSRN.  Here's the abstract:

On June 28, 2004, the Supreme Court decided Missouri v. Seibert, 124 S. Ct. 2601(2004). At first glance, Seibert may look like a Miranda victory, but this is an illusion. Although Justice Souter's plurality decision condemns question-first police practices designed to circumvent Miranda, the case is governed by Justice Kennedy's concurrance which requires that the defendant prove that the police officer acted in bad faith.  The problem with Seibert is not that courts applying the new rule will ignore some epidemic of inadvertent Miranda violations; these are presumably rare. The real danger is that opportunistic Miranda foes can use Seibert to persuade judges to admit statments taken in violation of Miranda in future case when the defendant fails to prove that the police acted with subjective bad faith. Under this new rule, even statements taken in deliberate bad faith violation of Miranda should be admitted if the police have taken certain curative measures.  This article suggests an alternative future. Without the police bad faith test, which does not currently have the support of the majority, Seibert's ban on unwarned pre-interrogation questioning could help transform Miranda into a more effective deterrent. Seibert reflects the reality that Miranda alone does not work and could be used to support the adoption of additional enforcement mechanisms, such as rules requiring the videotaping of custodial interrogations. With more than fifteen states currently contemplating the mandatory taping of all custodial interrogations, the time is ripe for a critical analysis of Seibert and its full potential.

The author would be very interested in comments from faculty interested in exploring the problems that arise when focus shifts to the subjective intent of the interrogator.  Although Seibert may have slipped under most folks' radar, there have been hints of a similar shift in the discussions of permissible forms of torture. 

She can be reached at jmoreno@fac.nesl.edu.

To obtain a copy of the paper, click here. [Mark Godsey]

http://lawprofessors.typepad.com/crimprof_blog/2005/06/new_article_spo_5.html

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